•I 


II 


^^^legass&larzelere 

ArrORPfEYS-AT-LAW,       ' 

J^orristown.  Pa.  ' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


J: 


THE 

NEGOTIABLE  INSTRUMENTS  LAW 

OF 

PEN  NSYLVANI  A. 

From  the   Dkakt   i-kkpakkd   kor  thk  Commissioners  on    Uniformity 

OF   Laws,   and   Enacted  in  Nkw  York,   Massachusetts,   Rhode 

Island,  Connecticut,  Pennsylvania,  District  of  Columbia, 

Maryland,   Vhujinia,  North   Carolina,   Tennessee, 

Florida,  Wisconsin,  North  Dakota,  Colorado, 

Utah,    Oregon   and  Washington. 

THE  FULL  TEXT  OF  THE  LAW  AS  EXACTED, 
WITH  COPIOUS  AXXOTATIOXS. 


BY 

JOHN  J.    CRAWFORD, 

Of  the  New  York  Bar, 

BY  WHOM  THE  STATUTE  WAS  DRAWN. 


NEW    YORK  : 

BAKER,    VOORHIS   AND   COMPANY. 

NEWARK,    N.  J. 

SONEY   AND   SAGE, 
1902. 


T 


Copyright,  1902, 
By  John  J.  Crawford. 


PREFACE. 

In  1895  the  Conference  of  Commissioners  on  Uniformity 
of  Laws,  which  met  that  year  in  Detroit,  instructed  the  Com- 
mittee on  Commercial  Law  to  have  prepared  a  codification 
of  the  law  relating  to  bills  and  notes.  The  matter  was  re- 
ferred to  a  sub-committee  consisting  of  Lyman  D.  Brewster, 
of  Connecticut,  Henry  C.  Willcox,  of  New  York,  and  Frank 
Bergen,  of  New  Jersey;  and  I  was  employed  l)y  the  sub- 
committee to  draw  the  proposed  law.  When  completed,  the 
draft,  with  my  notes,  was  submitted  to  the  sub-committee, 
who  printed  it  and  sent  copies  to  each  member  of  the  confer- 
ence, and  also  to  many  prominent  lawyers  and  law  pro- 
fessors, and  to  several  English  judges  and  lawyers,  with  an 
invitation  for  suggestions  and  criticisms.  The  draft  was 
submitted  to  the  conference,  which  met  at  Saratoga  in  Au- 
gust, 1896;  and  the  commissioners  who  were  in  attendance, 
being  twenty-seven  in  all,  and  representing  fourteen  differ- 
ent States,  went  over  it  section  by  section,  and  made  some 
amendments  therein,  most  of  which  were  such  changes  in  the 
existing  law  as  I  had  not  felt  at  hberty  to  incorporate 
into  the  orifrinal  draft.  The  draft  as  thus  amended  was 
adopted  by  the  conference;  and  was  afterwards  approved 
by  the  American  Bar  Association,  the  American  Bank- 
ers' Association,  and  by  many  State  bar  associations, 
among  them  that  of  Pennsylvania.  The  law  has  been  en- 
acted in  New  York,  Massachusetts,  Connecticut,  Rhode 
Island,  Pennsylvania,  Maryland,  Virginia,  North  Carolina, 
Tennessee,  Florida,  Wisconsin,  North  Dakota,  Coloradc^, 
Utah,  Oregon,  and  Washington,  and  has  also  been  adopted 
by  Congress  as  the  law  of  the  District  of  Columbia.    In  most 


iv  PREFACE. 

instances  the  law  has  been  passed  in  the  form  proposed  by 
the  Commissioners  on  Uniformity  of  Laws;  but  in  several 
States  a  few  minor  changes  have  been  made.  These  are  in- 
dicated in  the  notes.  I  have  also  endeavored  to  point  out  the 
changes  made  by  the  law  in  the  different  States  and  have 
added  to  the  notes  citations  to  the  decisions  in  all  the  States 
where  the  statute  is  now  in  force.  It  is  somewhat  notable 
that  so  few  cases  have  arisen  under  the  Act.  The  reported 
cases  number  only  about  a  half  dozen  in  all ;  and  in  most  of 
these  the  court  was  required  only  to  apply  the  act,  and  not  to 
construe  it.  Perhaps  nothing  could  better  demonstrate  that 
the  practical  working  of  the  law  has  been  satisfactory. 

The  text  as  printed  in  this  edition  is  that  of  the  Pennsyl- 
vania statute.  This  is  precisely  the  same  as  that  published 
by  tlie  Commissioners  on  Uniformity  of-  Laws,  except  for 
several  slight  verbal  changes,  and  a  few  omissions  and  inac- 
curacies caused  by  errors  in  engrossing.  The  section  head- 
ings, however,  do  not  appear  in  the  Pennsylvania  statute; 
they  are  found  only  in  the  New  York  Act.  But  as  they  are 
fuller  and  more  complete  than  the  marginal  notations  of  the 
Pennsylvania  enactment,  they  have  been  retained  instead  of 

the  latter. 

John  J.  Crawford. 

30  Broad  Street,  New  York,  February  i,  1902. 


THE  NEGOTIABLE  INSTRUMENTS  LAW. 


THE  NEGOTIABLE  INSTRUMENTS  LAW. 

Laws  of  Pennsylvania,  1901,  No.  162. 


Sections     i-  23.  Form    and    interpretation    of    negotiable 

instruments. 

24-  29.  Consideration. 

30-  50.  Negotiation. 

51-  59.  Rights  of  holder. 

60-  69.  Liabilities  of  parties. 

70-  88.  Presentment  for  payment. 

89-118.  Notice  of  dishonor. 
1 19-125.  Discharge  of  negotiable  instruments. 
126-13 1.  Bills  of  exchange;  form  and  interpreta- 
tion. 
132-142.  x\cceptance. 
1 43- 1 5 1 .  Presentment  for  acceptance. 
152-160.  Protest. 
161- 1 70.  Acceptance  for  honor. 
1 71-177.   Payment  for  honor. 
178-183.  Bills  in  a  set. 
184-189.  Promissory  notes  and  checks. 
190-198.  General  provisions. 


8  THE  NEGOTIABLE     INSTRUMENTS     LAW. 

CHAPTER     I. 
NEGOTIABLE    INSTRUMENTS    IN     GENERAL. 

ARTICLE  I.* 
Form  oEf  Interpretation. 

Section    i.  Form  of  negotiable  instrument. 

2.  Certainty  as  to  sum ;   what  constitutes. 

3.  When  promise  is  unconditional. 

4.  Determinable  future  time;  what  constitutes. 

5.  Additional    provisions    not    affecting    negotia- 

bility. 

6.  Omissions;  seal;  particular  money. 

7.  When  payable  on  demand. 

8.  When  payable  to  order. 

9.  When  payable  to  bearer. 

10.  Terms  when  sufficient. 

11.  Date,  presumption  as  to. 

12.  Ante-dated  and  post-dated. 

13.  When  date  may  be  inserted. 

14.  Blanks,  when  may  be  filled. 

15.  Incomplete  instrument  not  delivered. 

16.  Delivery;  when  effectual;  when  presumed. 

17.  Construction  where  instrument  is  ambiguous. 

18.  Liability  of  person  signing  in  trade  or  assumed 

name. 

19.  Signature  by  agent ;  authority ;  how  shown. 

20.  Liability  of  person  signing  as  agent,  et  cetera. 

21.  Signature  by  procuration;  effect  of. 

22.  Effect  of  indorsement  by  infant  or  corporation. 

23.  Forged  signature ;  effect  of . 

*Thc  numbers  of  the  sections  of  this  article  in  States  other  than 
Pennsylvania  are  as  follows:  Colorado,  Connecticut,  District  of 
Columbia,  Florida,  Mas<=achusetts,  North  Carolina,  North  Dakota.  Ore- 
gon, Tennessee,  Utah,  Virginia,  and  Washington,  r-23;  New  York,  20- 
42;  Maryland,  20-42;  Rhode  Island.  g-.3i  ;  Wisconsin.  1675-1  to  1675-23. 

tError  in  engrossing  for  "and." 


FORM    AND    INTERPRETATION.  9 

§  I.  Form  of  negotiable  instrument.— Be  it  enacted, 
etc. :  That  an  instrument  lu  be  negotialile  must  conform  to 
the  following  requirements : 

1.  It  must  be  in  writing  ((/)  and  signed  l)y  the  maker  (jr 
drawer. 

2.  Must  contain  an  unconditional  promise  {b)  or  order  to 
pay  a  sum  certain  in  money  (c)  ; 

3.  Must  be  payable  on  demand  ((/),  or  at  a  fixed  or 
determinable  future  time  (c)  ; 

4.  Must  be  payable  to  order  (/)  or  to  bearer  (g)  ;  and 

5.  Where  the  instrument  is  addressed  to  a  drawee,  he 
must  be  named  or  otherwise  indicated  therein  with  reason- 
able certainty  (//). 

(a)  The  writino-  may  be  in  pencil.  Brown  v.  Butchers'  Bank, 
G  Hill,  443. 

(h)  See  section  3. 

(c)  This  is  the  rule  of  the  law  merchant,  and  the  rule  which  pre- 
vails in  most  of  the  States.  In  some  States — as,  for  example,  in 
Iowa  and  Georgia — certain  instruments  are  declared  by  statute  to  be 
negotiable,  though  they  provide  that  payment  is  to  be  made  in  goods 
or  merchandise.  See  also  section  6,  subdivision  5.  In  !New  York 
warehouse  receipts  issued  by  certain  corporations  are  declared  to 
be  negotiable.  See  Hanover  Nat.  Bank  r.  American  Dock  and 
Trust  Co.,  148  N.  Y.  612;  Corn  Exchange  Bank  v.  Same,  149  N.  Y. 
174.     The  act  does  not  repeal  these  statutes. 

Ul)   See  section  7. 

(e)  See  section  4. 

(/)  See  section  8.  The  North  Carolina  Act  reads :  "  Must  be 
payable  to  the  order  of  a  specified  person  or  bearer."  The  words 
"  specified  person"  are  surplusage,  since  by  section  8  this  is  de- 
clared to  be  the  effect  of  the  term  "  order." 

(g)  Yingling  v.  Kohlhass,  IS  ^Id.  148;  Curtis  r.  llazen,  56  Conn. 
146.  If  the  instrument  is  payable  to  a  particular  person,  and  not 
to  his  order  or  to  bearer,  it  is  not  negotiable.  Backus  i'.  Danforth, 
10  Conn.  297.  As  to  bonds  payable  to  bearer  and  coupons,  see  Carr. 
V.  Leferre,  27  Pa.  St.  413;  County  of  Beaver  r.  Armstrong,  44  Pa. 
St.  63 ;  National  Exchange  Bank  v.  Hartford  etc.  R.  R.  Co.  8  R.  I. 
375.  As  to  Treasury  notes,  see  Frazer  v.  D'Quilliers,  2  Pa.  St.  200. 
See  section  9, 


lO  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

<Ji)  See  section  126.  The  Wisconsiu  Act  has  the  following  addi- 
tional provision :  "  But  no  order  drawn  upon  or  accepted  by  the 
treasurer  of  any  county,  town,  city,  village  or  school  district, 
whether  drawn  by  any  officer  thereof  or  any  other  person,  and  no 
obligation  or  instrument  made  by  any  such  corporation  or  any  offi- 
cer thereof,  unless  expressly  authorized  by  law  to  be  made  negotia- 
ble, shall  be,  or  shall  be  deemed  to  be,  negotiable  according  to  the 
custom  of  merchants,  in  whatever  form  they  may  be  drawn  or 
made.  AVarehouse  receipts,  bills  of  lading  and  railroad  receipts 
upon  the  face  of  which  the  words  '  Not  negotiable'  shall  not  be 
plainly  written,  printed  or  stamped,  shall  be  negotiable  as  provided 
in  section  1676  of  the  Wisconsin  Statutes  of  1878,  and  in  sections 
4194  and  4425  of  these  statutes,  as  the  same  have  been  construed 
by  the  Supreme  Court." 

§  2.  Certainty  as  to  sum  ;  what  constitutes.— The 
sum  payable  is  a  sum  certain  within  the  meaning  of  this  act, 
although  it  is  to  be  paid : 

1.  With  interest;  or 

2.  By  stated  instalments   (a)  ;  or 

3.  By  stated  instalments,  with  a  provision  that  upon  de- 
fault in  payment  of  any  instalment  or  of  interest  (b),  the 
whole  shall  become  due;  or 

4.  With  exchange,  whether  at  a  fixed  rate  or  at  the 
current  rate  (c)  ;  or 

5.  With  costs  of  collection  or  an  attorney's  fee,  in  case 
payment  shall  not  be  made  at  maturity  (d). 

(a)  Markey  v.  Corey,  108  Mich.  184;  Wright  v.  -Irwin,  33  Mich. 
32.  In  this  case  the  note  was  for  $1500,  to  be  paid  twenty  per  cent. 
a  month  from  the  1st  of  July,  1871. 

(h)  In  the  Xorth  Carolina  Act  the  words  "or  interest"  are 
omitted. 

(c)  Second  National  Bank  of  Aurora  v.  Basuier,  65  Fed.  Eep. 
58;  Hastings  v.  Thqmpson,  54  Minn.  184;  Flagg  v.  School  District, 
4  X.  D.  30;  ^Vhittle  v.  Fond  du  Lac  National  Bank  (Tex.),  26  S.  W. 
Rep.  1106.    Contra:    Culbertson  v.  Nelson,  93  Iowa  187. 

(d)  As  to  this  point  there  has  been  much  conflict  in  the  decisions. 
The  rule  adopted  in  the  act  is  the  one  sustained  by  the  weight  of 
authority.    It  is  supported  by  National  Bank  v.  Sutton  Mfg.  Co., 


FORM    AND    INTERPRETATION.  II 

0  U.  S.  App.  312,  331;  Oppenheimer  v.  Farmers'  and  Merchants' 
Bank,   97   Tenn.   19;    MoutKOuiery   v.    Crossthwait,    90   Ala.    553; 
Trader  v.  Chichester,  41  Ark.  242;  Stapleton  v.  Louisville  Banking 
Co.  95  Ga.  802;  Dorsey  v.  WolflF,  142  111.  589;  Stoneman  v.  Pyle, 
35    Ind.    103;     Shenandoah   Kat.    Bank   v.   Marsh,    89    Iowa   273, 
Rep.  458;  Benn  v.  Kutzsehan,  24  Oregon  28;  Seaton  v.  Sccn-ille, 
18  Kans.  433;  Dietrich  v.  Boylie,  23  La.  Ann.  7G7;  Second  National 
Bank  V.  Anglin,  6  Wash.  403;  Heard  v.  Dubuque  Bank,  8  Neb.  10; 
Stark  V.  Olsen,  44  Neb.  G46.    The  courts  which  have  sustained  this 
rule  liavc  taken  the  view  that  so  long  as  the  amount  payable  is 
certain  up  to  the  time  of  maturity  and  dishonor,  it  is  not  essential 
that  after  that  time,  when  the  instrument  has  become  non-negotia- 
ble for  other  reasons,  the  certainty  as  to  the  amount  should  con- 
tinue.    In  the  Tennessee  case  above  cited  the  court  said :     "  Upon 
a  careful  review  of  the  authorities,  we  can  perceive  no  reason  why 
a  note  otherwise  imbued  with  all  the  attributes  of  negotiability  is 
rendered  non-negotiable  by  a  stipulation  which  is  entirely  inopera- 
tive until  after  the  maturity  of  the  note  and  its  dishonor  by  the 
maker.     The  amount  to  be  paid  is  certain  during  the  currency  of 
the  note  as  a  negotiable  instrument,  and  it  only  becomes  uncertain 
after  it  ceases  to  be  negotiable  by  the  default  of  the  maker  in  its 
payment.     It  is  eminently  just  that  the  creditor  who  has  incurred 
an  expense  in  the  collection  of  the  debt  should  be  reimbursed  by 
the  debtor  by  whom  the  action  was  rendered  necessary,  and  the 
expense  entailed."     The  statute  has  changed  the  law  in  Maryland, 
Maryland  Fertilizing  Co.  v.  Newman,  60  Md.  584.    North  Carolina 
First  National  Bank  v  Bynum,  84  N.  C.  24;  Pennsylvania  Woods 
V.  North,  84  Pa.  St.  407.     See  also  Jones  v.  Rodetz,  27  Minn.  240; 
First  Nat.  Bank  v.  Gay,  63  Mo.  38;  First  Nat.  Bank  v.  Larsen,  60 
Wis.  206 ;  Morgan  v.  Edwards,  53  Wis.  599 ;  Sylvester  Bleckley  Co. 
V.   Alewine,   48    S.    C.   308.      The   question   does   not   appear   to 
have  been  passed  upon  by  the  New  York  courts.     In  some  States 
a  stipulation  to  pay  a  specified  percentage  as  an  attorney's  fee  is 
void.     Levens  v.  Briggs,  21  Oregon  333.     The  statute,  probably, 
does  not  change  the  law  of  these  States,  since  it  does  not  attempt 
to  validate  such  provisions,  but  merely  declares  that  their  presence 
in  the  instrument  does  not  affect  its  negotiable  quality. 


§  3.  When  promise  is  unconditional. — An  unqtiali- 
fied  order  or  promise  to  pay  is  unconditional  within 
the  meaning-  of  this  act,  though  coupled  with : 


12  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

1.  An  indication  of  a  particular  fund  out  of  which  reim- 
bursement is  to  be  made,  or  a  particular  account  to  be  debited 
with  the  amount;   (</)  or 

2.  A  statement  of  the  transaction  which  gives  rise  to  the 
instrument  {b). 

But  an  order  or  promise  to  pay  out  of  a  particular  fund 
is  not  unconditional  (c). 

(a)  The  mere  mention  of  a  fund  in  a  draft  does  not  necessarily 
deprive  it  of  the  character  of  commercial  paper,  but  it  must  further 
appear,  in  order  to  have  such  effect,  that  it  contains  either  an 
express  or  implied  direction  to  pay  it  therefrom,  and  not  otherwise. 
Schmittler  v.  Simon,  101  N.  Y.  554,  560.  In  the  case  cited,  a  draft 
drawn  upon  an  executor  contained  the  words,  "and  charge  the 
amount  against  me  and  of  my  mother's  estate."  It  was  held  that 
the  reference  to  the  estate  was  not  a  direction  to  pay  out  of  it, 
but  that  the  estate  was  referred  to  simply  as  a  means  of 
reimbursement.  So,  in  Macleod  v.  Luce,  2  Stra.  762 ;  2  Ld.  Kaym. 
1481,  where  the  instrument  contained  the  words,  "  as  my  quarterly 
half-pay,  to  be  due  from  24th  of  June  to  27th  of  September  next, 
by  advance,"  the  court  said,  "  The  mention  of  the  half -pay  is  only 
by  way  of  direction  how  he  shall  reimburse  himself,  but  the  money 
is  still  to  be  advanced  on  the  credit  of  the  person ;"  and  the  court 
accordingly  held  the  instrument  to  be  a  bill  of  exchange.  Like- 
wise, in  Redman  v.  Adams,  51  Me.  433,  where  the  drawer  added, 
"  and  charge  the  same  against  whatever  amount  may  be  due  me  for 
my  share  of  fish/'  it  was  held  that  these  words  were  a  mere  indica- 
tion of  the  means  of  reimbursement,  and  did  not  destroy  the  nego- 
tiable character  of  the  draft.  And  a  similar  ruling  was  made  in 
Whitney  v.  Eliot  National  Bank,  137  Mass.  351,  where  the  direc- 
tions were,  "  charge  the  same  to  account  of  250  bbls.  meal  ex- 
schooner  Aurora  Borealis."  See  also  Nichols  v.  Ruggles,  76  Me. 
27.  The  test  is  whether  the  drawee  is  confined  to  the  particular 
fund,  or  whether,  though  a  specified  fund  is  mentioned,  he  could 
have  the  power  to  charge  the  bill  up  to  the  general  account  of  the 
drawer,  if  the  designated  fund  should  turn  out  to  be  insufficient. 
Munger  v.  Shannon,  61  N.  Y.  251,  255. 

(6)  This  occurs  most  frequently  in  the  case  of  notes  given  in 
payment  of  the  purchase  price  of  goods  and  chattels.  In  Mott  v. 
Havana  Nat.  Bank,  22  Hun,  354,  it  was  held  that  a  provision  in 


FORM    AND    INTERPRETATION.  1 3 

tlie  note  tliat  it  was  to  bo  "  in  part  i)a.ynu'iit  for  a  portable  onfiine, 
wbich  engine  sball  be  and  remain  tiie  property  of  the  owner  of  this 
note  until  the  amount  hereby  secured  is  paid,"  did  not  render  the 
note  non-negotiable.  So  where  there  was  a  similar  recital  as  to  the 
title  of  a  piano,  for  the  price  of  which  the  note  was  given.  Third 
Nat.  Bank  v.  Bowman,  50  App.  Div.  GG,  reversing  S.  C.  28  Misc. 
7.  And  so,  where  there  was  a  recital  in  the  note  that  it  was  "  given 
in  consideration  of  a  certain  patent  right."  liereth  v.  Meyer,  33 
l.ul.  511. 

(c)  Lowery  v.  Steward,  25  N.  Y.  239;  Munger  t'.  Shannon,  Gl 
N.  Y.  251;  Parker  v.  City  of  Syracuse,  31  N.  Y.  376;  Morton  v. 
Naylor,  1  Hill,  5S3.  In  the  case  first  cited  the  order  was:  "  Please 
pay  to  the  order  of  Archibald  H.  Lowery  the  sum  of  $500  on 
account  of  twenty-four  bales  cotton  shipped  to  you  as  per  bill 
of  lading,  by  steamer  Colorado,  inclosed  to  you  in  letter."  It  was 
held  that  this  was  not  a  bill  of  exchange,  requiring'  acceptance  to 
bind  the  drawers,  but  a  specific  draft  or  order  upon  a  particular 
fund.  See  also  National  Savings  Bank  v.  Cable  (Conn.)  48  Atl. 
Kep.  428  (a  case  arising  under  the  statute). 

§  4.      Determinable  future  time  ;    what  constitutes. — 

An  instrument  is  payal)le  at  a  determinable  future  time, 
within  the  meaning  of  this  act,  which  is  expressed  to  be 
payable : 

1.  At  a  fixed  period  after  date  or  sight;  or 

2.  On  or  before  a  fixed  or  determinable  future  time 
specified  therein;  (a)  or 

3.  On  or  at  a  fixed  period  after  the  occurrence  of  a 
specified  event,  which  is  certain  to  happen,  though  the  time 
of  happening  be  uncertain  (b). 

-\n  instrtiment  payable  upon  a  contingency  is  not  nego- 
tiable, and  the  happening  of  the  event  does  not  cure  the 
defect  (c). 

(a)  In  such  a  case  the  legal  rights  of  a  holder  are  clear  and 
certain:  the  note  is  due  at  a  time  fixed,  and  it  is  not  due  before. 
The  option  of  the  maker,  if  exercised,  would  be  a  payment  in 
advance  of  the  legal  liability  to  pay,  and  nothing  more.  See  Mat- 
tison  V.  :^rarks,  31  ^Iwh.  421 :  Smith  v.  Ellis,  29  Me.  422;  Buchanan 
r.  Wren  (Tex.),  30  S.  W.  Hep.  1077;  Rikcr  v.  Sprague  Mfg.  Co.,  14 


14  THE    XEGOTIABLE    INSTRUMENTS    LAW. 

E.  I.  402 ;  Kiskadden  v.  Allen,  7  Colorado  206 ;  Jordan  v.  Tate,  19 
Ohio  St.  586;  xUbertson  v.  Laughlin,  173  Pa.  St.  525.  Thus, 
where  the  note  was  made  payable  twelve  months  after  date,  or 
before,  if  the  money  was  made  out  of  the  sale  of  a  machine,  it  was 
held  to  be  negotiable.    Ernst  v.  Steckman,  71  Pa.  St.  13. 

(h)  Thus,  a  note  payable  a  certain  iniiiiber  of  days  after  the 
death  of  the  maker,  or  upon  demand  after  the  death  of  the  maker, 
is  a  good  promissory  note,  because  the  event  is  sure  to  happen. 
Carnwright  v.  Gray,  127  N.  Y.  92 ;  Hegeman  v.  Moon,  131  N.  Y. 
462.  See  also  Shaw  v.  Camp,  160  111.  425;  Martin  v.  Stone  (N.  H.), 
29  Atl.  Rep.  845;  Price  v.  Jones,  105  Ind.  544;  Bristol  v.  Warner, 
19  Conn.  74.  But  an  instrument  payable  when,  or  in  so  many  days 
after,  "  A  shall  become  of  age,"  would  not  be  negotiable,  because 
it  is  uncertain  whether  A  will  live  so  long.  Goss  v.  Nelson,  1 
Burr,  226;  Rice  v.  Rice,  43  App.  Div.  (N.  Y.)  458;  so,  a  note  pay- 
able "  when  A  shall  marry."  Reason  v.  Garrett,  4  Mod.  242 ;  or 
when  a  certain  ship  shall  arrive.  Coolidge  v.  Ruggles,  15  Mass. 
387 ;  Grant  v.  Wood,  12  Gray,  220. 

(c)  Duffield  V.  Johnston,  95  N.  Y.  369;  First  National  Bank  v. 
Alton,  60  Conn.  402,  Thus,  where  an  instrument  is  made  payable 
when  a  certain  person  shall  become  of  age,  the  fact  that  he  actually 
attains  his  majority  does  not  make  the  instrument  negotiable. 
Goss  V.  Nelson,  1  Burr,  226. 

§  5.     Additional  provisions  not  affecting  negotiability. 

— An  instrument  which  contains  an  order  or  promise  to  do 
any  act  in  addition  to  the  payment  of  money  is  not  nego- 
tiable. But  the  negotiable  character  of  an  instrument 
otherwise  negotiable  is  not  affected  Ijy  a  provision  which : 

1.  Authorizes  the  sale  of  collateral  securities  in  case  the 
instrument  be  not  paid  at  maturity  (</)  ;  or 

2.  Authorizes  a  confession  of  judgment  if  the  instrument 
be  not  paid  at  maturity   (b)  ;  or 

3.  Waives  the  benefit  of  any  law  intended  for  the  advan- 
tage or  protection  of  the  obligor  (c)  ;  or 

4.  Gives  the  holder  an  election  to  require  something  to  be 
done  in  lieu  of  payment  of  money  (d). 

But  nothing  in  this  section  shall  validate  any  provision 
or  stipulation  otherwise  illegal  (e). 


FORM    AND    INTERPRETATION.  1 5 

(a)  Collateral  notes  are  often  non-negotiable  lx?cause  of  some 
provision  therein  in  regard  to  the  time  of  payment,  or  because  of 
provisions  requiring  something  to  be  done  in  addition  to  the  pay- 
ment of  money.  But  a  statement  that  collateral  security  has  been 
deposited  for  the  performance  of  the  promise  contained  in  the  note 
is  a  recital  only  which  does  not  aifect  its  negotiability.  Wise  v. 
Charlton,  4  A.  &  E.  4SC ;  Fancourt  v.  Thorne,  9  Q.  B.  312.  And  a 
provision  merely  authorizing  the  sale  of  the  collateral,  if  the  note 
be  dishonored,  does  not  have  this  effect.  Perry  r.  Bigelow,  128 
Mass.  129;  Towne  v.  Rice,  122  Mass.  67;  Biegler  v.  Merchants' 
Loan  &  Trust  Co.,  62  111.  App.  560;  Arnold  v.  Rock  River  Valley 
Union  R.  R.  Co.,  5  Duer,  207.  A  statement,  however,  that  the 
note  is  "  given  as  collateral  security  with  agreement"  destroys  its 
negotiable  character.     Costello  v.  Crowell,  127  Mass.  293. 

(b)  This  provision  was  inserted  in  the  act  to  meet  the  require- 
ments in  some  of  the  States  where  judgment  notes  are  in  use.  Such 
notes  are  not  known  in  New  York.  In  Pennsylvania  it  was  held 
that  the  warrant  of  attorney  rendered  the  note  non-negotiable. 
Overton  v.  Tyler,  3  Pa.  St.  346;  Sweeney  v.  Thickstum,  77  Pa.  St. 
131. 

(c)  In  some  of  the  States  it  is  a  common  practice  to  insert  in 
promissory  notes  a  waiver  of  the  benefits  of  homestead  and  exemp- 
tion laws;  and  this  provision  of  the  act  is  designed  to  meet  such 
cases.  See  Zimmerman  v.  Anderson,  67  Pa.  St.  421;  Zimmerman 
V.  Rote,  75  Pa.  St.  188. 

(d)  An  illustration  of  this  case  is  the  right  of  the  holder  to  elect 
to  take  stock  of  a  corporation  in  lieu  of  payment  in  money.  Hodges 
V.  Shuler,  22  X.  Y.  114.  As  the  obligation  of  the  maker  is  to  pay 
in  money,  and  as  the  payment  in  stock  is  not  optional  with  him, 
the  note  is  not  within  the  rule  that  a  negotiable  instrument  must 
not  be  payable  in  the  alternative. — Id. 

(e)  The  object  of  this  provision  is  to  prevent  any  inference  of 
an  intent  to  validate  any  agreement  or  stipulation  mentioned  in 
the  section,  where,  by  any  statute  or  settled  policy  of  the  State,  the 
same  would  be  illegal.  In  the  Wisconsin  Act  the  following  words 
are  added :  "  or  authorize  the  waiver  of  exemptions  from  execu- 
tion." 


§6.  Omissions;  seal;  particular  money.— The  valid- 
ity and  negotiable  character  of  an  instrument  are  not  affected 
by  the  fact  that : 


l6  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

1.  It  is  not  dated  (a)  ;  or 

2.  Does  not  specify  the  value  given,  or  that  any  vakie  has 
been  given  therefor  (b)  ;  or 

3.  Does  not  specify  the  place  where  it  is  drawn  or  the 
place  where  it  is  payable  (c)  ;  or 

4.  Bears  a  seal  (d)  ;  or 

5.  Designates  a  particular  kind  of  current  money  in  which 
payment  is  to  be  made  (e). 

But  nothing  in  this  section  shall  alter  or  repeal  any  statute 
requiring  in  certain  cases  the  nature  of  the  consideration  to 
be  stated  in  the  instrument  (/). 

(a)  See  section  IT,  wliich  provides  that  "  where  the  instrument 
is  not  dated,  it  will  be  considered  to  be  dated  as  of  the  time  it  was 
issued."  As  between  the  immediate  parties  parol  evidence  is 
admissible  to  show  the  true  date  of  a  misdated  note.  Bigge  v. 
Piper,  86  Tenn.  589. 

(h)  The  words  "  value  received"  are  not  necessary.  Daniel  on 
Negotiable  Instruments,  §  108.  Formerly  in  Connecticut  a  prom- 
issory note,  not  purporting  on  its  face  to  be  for  value  received* did 
not  import  a  consideration.  Edgerton  v.  Edgerton,  8  Conn.  G; 
Bristol  V.  Warner,  19  Conn.  7. 

(c)  See  sections  3,  28,  77. 

(d)  In  two  late  cases  in  the  Court  of  Appeals  of  New  York  it 
was  held  that  the  commercial  paper  of  a  corporation  does  not  lose 
the  quality  of  negotiability  by  having  attached  thereto  the  cor- 
porate seal.  Chase  Nat.  Bank  v.  Faurot,  149  N.  Y.  532 ;  Weeks  v. 
Esler,  143  N.  Y.  374.  See  also  Mackay  v.  St.  Mary's  Church,  15 
K.  I.  121.  The  same  rule  has  been  applied  to  municipal  bonds 
under  seal.  Bank  of  Rome  v.  Village  of  Rome,  19  N.  Y.  20; 
Mercer  County  v.  Hacket,  1  Wall.  83.  And  to  the  bonds  of  private 
corporations.  Brainerd  v.  N.  Y.  &  H.  R.  R.  Co.,  25  N.  Y.  496.  So 
it  has  been  held  that  the  negotiability  of  a  United  States  treasury 
note  is  not  restrained  or  affected  by  the  fact  that  it  is  under  the 
treasury  seal.  Dinsmore  v.  Duncan,  57  N.  Y.  573.  In  Mercer 
County  V.  Ilacket,  supra,  it  was  said  by  Justice  Geier,  speaking  of 
bonds  issued  under  seal :  "  But  there  is  nothing  immoral  or  con- 
trary to  good  policy  in  making  them  negotiable  if  the  necessities  of 
commerce  require  that  they  should  be  so.  A  mere  technical  dogma 
of  the  courts  or  the  common  law  cannot  prohibit  the  commercial 


FORM    AND    INTERPRETATION.  1/ 

world  from  inventing  or  issuing  any  species  of  security  not  known 
in  the  last  century."  See  also  Mason  v.  Frick,  105  Pa.  St.  162  and 
cases  cited;  Morris  Canal,  etc.,  Co.  v.  Fisher,  9  N.  J.  Eq.  699; 
National  Exchange  Bank  v.  Hartford,  P.  &  F.  K.  Co.,  8  R.  I.  375 ; 
Jackson  v.  Myers,  43  Md.  452;  Muth  v.  Dolfield,  43  Md.  466. 
Contra,  Oshornc  v.  Hubbard,  20  Oregon  318.  The  rule  adopted 
in  the  act  existed  by  statute  in  the  following  States:  Colorado, 
Florida,  Georgia,  Illinois,  Kansas,  Massachusetts,  Nebraska,  North 
Carolina,  Ohio,  and  Tennessee. 

(e)  Thus,  a  note  payable  in  gold  coin  is  negotiable.  Chrysler  v. 
Griswold,  43  N.  Y.  209.  So  is  a  note  payable  "  in  bank  notes 
current  in  the  city  of  New  York."  Keith  v.  Jones,  9  Johns.  120. 
A  note  payable  "  in  New  York  State  bills  or  specie."  Judah  v. 
Harris,  19  Johns.  144.  And  a  note  payable  "in  current  Florida 
funds."  Williams  v.  Moseley,  2  Fla.  304.  But  see  Wright  v. 
Hart's  Admr.,  44  Pa.  St.  454,  where  it  was  held  that  a  note 
payable  "  in  current  funds  at  Pittsburgh"  was  not  negotiable.  See 
also  Ford  v.  Mitchell,  15  Wis.  304;  Piatt  v.  The  Sauk  County 
Bank,  17  Wis.  222;  Lindsey  v.  McClelland,  18  Wis.  481;  Klauber  v. 
Biggerstoff,  47  Wis.  551. 

(f)  In  a  number  of  the  States  it  is  required  that  notes  given  in 
payment  of  patent  rights  shall  have  written  on  the  face  thereof 
"given  for  a  patent  right."  So  there  are  statutes  requiring  that 
what  are  known  as  "  Bohemian  oats"  notes  shall  state  the  nature 
of  the  consideration  for  which  they  were  given.  The  above  pro- 
vision is  intended  to  prevent  any  repeal  of  such  statutes.  See  Laws 
Pa.  1872,  60;  Haskell  v.  Jones,  86  Pa.  St.  173;  Shires  v.  Common- 
wealth, ]20  Pa.  St.  368;  Hcrdic  v.  Roessler,  109  N.  Y.  127. 

§  7.  When  payable  on  demand. — An  instrument  is 
payable  on  demand : 

1.  Where  it  is  expressed  to  l3e  payable  on  demand,  or  at 
sight  (a),  or  on  presentation  ;  or 

2.  In  which  no  time  for  payment  is  expressed  (b). 
Where  an  instrument  is  issued,  accepted  or  indorsed  wlien 

overdue,  it  is,  as  regards  the  person  so  issuing,  accepting  or 
indorsing  it,  payable  on  demand  (c). 

(a)  By  the  law  merchant  there  are  some  distinctions  between 
instruments  payable  on  demand  and  those  payable  at  sight;  as,  for 
example,  in  the  matter  of  days  of  grace.     See  Daniel  on  Negotiable 


l8  THE    i\E(;0TlABLE    INSTRUMENTS    LAW. 

Instruments,  §§  617-619,  and  authorities  there  cited.  This  was 
also  the  effect  of  former  statut-es  in  some  of  the  States.  Walsh  v. 
Dart,  12  Wis.  635.     The  new  statute  abolishes  all  these  distinctions. 

(b)  Messmore  v.  Morrison,  172  Pa.  St.  300;  Hall  v.  Toby,  110 
Pa.  St.  318 ;  James  v.  Brown,  11  Ohio  St.  601 ;  Holmes  v.  West,  17 
Cal.  623;  Porter  v.  Porter,  51  Me.  376;  Keyes  v.  Feustomaher,  24 
Cal.  329;  Bank  v.  Price,  52  Iowa  530;  Libby  v.  Mekelborg,  28 
Minn.  38;  Roberts  v.  Snow,  28  Neb.  425;  Bacon  v.  Page,  1  Conn. 
405;  Raymond  v.  Sellick,  10  Conn.  485;  Dodd  v.  Denny,  6  Oregon 
156.  And  the  legal  intendment  that  the  instrument  is  payable  on 
demand  cannot  be  changed  by  parol  proof.  Roberts  v.  Snow,  28 
Xeb.  425 ;  Thompson  v.  Ketcham,  8  Johns.  146 ;  Sheldon  v.  Heaton, 
88  Hun,  535 ;  Gaylord  v.  Van  Loan,  15  Wend.  308 ;  McLepd  v.  Hun- 
ter, 29  Misc.  558  (a  case  arising  under  the  statute) ;  Koehning  v. 
Muemminghoff,  61  Mo.  403 ;  Self  v.  King,  28  Tex.  552.  Tiie  words 
"  on  demand"  may  be  added  without  avoiding  the  instrument. 
Byles  on  Bills,  210. 

(c)  Berry  v.  Robinson,  9  Johns.  121;  Leavitt,  v.  Putnam,  1 
Sandf .  199 ;  Bassonhorst  v.  Wilby,  45  Ohio  St.  336 ;  Light  v.  Kingo- 
bury,  50  Mo.  331;  Smith  v.  Caro,  9  Oregon  280;  Bemis  v.  McKenzie, 
]3  Fla.  553.  It  is  commonly  said  that  the  indorsement  of  a  bill  or 
note  which  is  overdue  is  equivalent  to  drawing  a  new  instrument 
payable  at  sight.  Bishop  v.  Dexter,  2  Conn.  419 ;  Mudd  v.  Harper, 
1  Md.  110.  In  such  cases  presentment  for  payment  must  be  made 
and  notice  of  dishonor  given,  as  in  other  instances  of  instruments 
payable  on  demand.  Berry  v.  Robinson,  9  Johns.  121;  Van  Hoosen 
V.  Van  Alstyne,  9  Wend.  79;  Poole  v.  Tolleson,  1  McCord,  200; 
Patterson  v.  Todd,  18  Pa.  St.  420;  Rosson  v.  Carroll,  90  Tenn.  90; 
Brown  V.  Hull,  33  Gratt.  23.  Where  a  note,  negotiated  before  due, 
is  further  negotiated  after  it  has  been  dishonored,  the  holder  takes 
the.  legal  title,  and  can  maintain  a  suit  upon  it  in  his  own  name,  in 
the  same  manner  as  if  he  had  received  it  before  it  was  due.  French 
V.  Jarvis,  29  Conn.  353. 

§  8.  When  payable  to  order. — The  instrument  is  pay- 
able to  order  where  it  is  drawn  payable  to  the  order  of  a 
specified  person  or  to  him  or  his  order  (a).  It  may  be  drawn 
payable  to  the  order  of : 

1.  A  payee  who  is  not  maker,  drawer  or  drawee;  or 

2.  The  drawer  or  maker  (b)  ;  or 

3.  The  drawee;  or 


FORM    AND    INTERPRETATION.  K) 

4.  Two  or  more  payees  jointly;  or 

5.  One  or  some  of  several  payees  (c)  ;  or 

6.  The  holder  of  an  office  for  the  time  being  (d). 
Where  the  instrument  is  payable  to  order  the  payee  must 

be  named  or  otherwise  indicated  therein  with  reasonable 
certainty  (c). 

(a)  By  the  rules  of  the  law  merchant  an  instrument  payable  to 
a  specified  person  without  the  addition  of  the  word  "  order,"  or 
other  word  of  similar  import,  was  not,  negotiable.  Byles  on  Bills, 
p.  83;  Smith  v.  Kendall,  6  T.  K.  123;  Maule  v.  Crawford,  14  Hun, 
193;  Carnwright  v.  Gray,  127  N.  Y.  92.  The  English  Bills  of  Ex- 
change Act  provides  that  "a  bill  is  payable  to  order  which  is 
expressed  to  be  so  payable,  or  which  is  expressed  to  be  payable  to 
a  particular  person,  and  does  not  contain  words  prohibiting  transfer 
or  indicating  an  intention  that  it  should  not  be  transferable."  But 
this  change  in  the  law  was  not  deemed  advantageous  and  was  not 
adopted. 

(&)  A  note  payable  to  the  order  of  the  maker  is  not  complete 
until  indorsed  by  him.     Section  ISi. 

(c)  Illustration:  A  draft  payable  to  A,  B,  and  C,  or  either  of 
them,  or  any  two  of  them. 

(d)  For  example,  a  note  payable  to  three  persons  as  trustees  of 
an  incorporated  association,  oi-  their  successors  in  office,  is  nego- 
tiable.    Davis  V.  Gore,  6  N.  Y.  124. 

(e)  The  payee  need  not  be  designated  by  name.  If  his  identity 
can  be  ascertained  with  certainty,  it  is  sufficient.  United  States  v. 
White,  2  Hill,  59 ;  Blackman  v.  Lehman,  63  Ala.  547. 

§  9.  When  payable  to  bearer.— The  instrument  is 
payable  to  bearer: 

1.  When  it  is  expressed  to  be  so  payable;  or 

2.  WHien  it  is  payable  to  a  person  named  therein  or  bearer 
(a)  ;  or 

3.  When  it  is  payable  to  the  order  of  a  fictitious  or  non- 
existing  person,  and  such  fact  was  known  to  the  person 
making  it  so  payable  (b)  :  or 

4.  When  the  name  of  the  payee  does  not  purport  to  be  the 
name  of  any  person  (c)  :  or 


20  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

S.  When  the  only  or  last  indorsement  is  an  indorsement 
in  blank. 

(a)  Illustration:  Instrument  payable  to  "A.  B.,  or  bearer."  In 
such  case  it  is  negotiable  by  delivery,  and  the  indorsement  of  A.  B. 
is  not  necessary  to  pass  the  title  therein.     See  section  30. 

(h)  It  has  been  held  that  a  note  made  payable  to  the  order  of  the 
estate  of  a  deceased  person  is  a  promissory  note  with  a  fictitious 
payee,  and  where  it  has  been  negotiated  by  the  maker  is  deemed  as 
against  him  to  be  a  note  payable  to  bearer.  Lewisohn  v.  The  Kent 
&  Stanley  Co.,  87  Hun,  257.  But  the  correctness  of  this  view  seems 
very  questionable.  The  ground  of  the  rule  is  that,  as  the  fictitious 
payee  cannot  indorse  the  instrument,  the  drawer  or  maker  must 
have  intended  that  it  should  be  payable  to  bearer.  But  no  such  in- 
tention can  be  properly  ascribed  where  the  instrument  is  drawn 
payable  to  the  order  of  an  estate;  for  the  obvious  intention  is  that 
it  shall  be  paid  upon  the  order  of  the  decedent's  legal  representa- 
tives, and  that  they  shall  indorse  the  paper.  Checks  are  frequently 
drawn  in  this  way,  and  it  appears  to  be  the  understanding  of  the 
business  community  that  they  require  the  indorsement  of  the  ex- 
ecutor or  administrator.  It  is  essential  that  the  fictitious  char- 
acter of  the  payee  should  be  known  to  the  person  making  the  in- 
strument so  payable.  As  said  by  the  Court  of  Appeals  of  New  York, 
in  Shipman  v.  Bank  of  the  State  of  New  York,  126  N.  Y.  318,  "  The 
maker's  intention  is  the  controlling  consideration  which  determines 
the  character  of  such  paper.  It  cannot  be  treated  as  payable  to  bearer 
unless  the  maker  knows  the  payee  to  be  fictitious,  and  actually 
intends  to  make  the  paper  payable  to  a  fictitious  person."  Hence, 
if  the  maker  or  drawer  supposes  the  payee  to  be  an  actually  existing 
person  (as,  for  instance,  where  he  is  induced  by  fraud  to  draw  the 
instrument  to  the  order  of  a  fictitious  person  whom  he  supposes  to 
exist),  the  instrument  will  not  be  payable  to  bearer,  and  no  person 
can  acquire  the  title  thereto  by  delivery.  And  where  the  instru- 
ment is  a  check,  or  a  bill  or  note  payable  at  a  bank,  the  bank  cannot 
charge  the  same  to  the  account  of  its  customer,  since  the  instru- 
ment is  not  in  such  case  payable  to  bearer,  and  the  indorsement 
is  a  forgery.  Shipman  v.  Bank  of  the  State  of  New  York,  supra; 
Armstrong  v.  Bank,  4G  Ohio  St.  412;  Chisholm  v.  First  Nat.  Bank 
of  New  York  (Tenn.),  39  S.  W.  Kep.  340;  Bank  of  England  v.  Vag- 
liano  [1891],  App.  Cas.  107.  But  see  Glutton  v.  Attenborough 
[1895],  2  Q.  B.  707. 

(c)   For  example,  a  check  payable  to  "  cash"  or  to  "  sundries." 


FORM    AND    INTERPRETATION.  21 

See  Willets  v.  Phconix  Bank.   2   Diier,   121;   Mechanics'   Bank  v. 
Stratton,  2  Keyes,  365. 

§  10.  Terms  when  sufficient. — The  instrument  need 
not  follow  the  language  of  this  act,  but  any  terms  are  suffi- 
cient which  clearly  indicate  an  intention  to  conform  to  the 
requirements  hereof  (a). 

(a)  It  may  be  written  in  a  foreign  language  as  well  as  in  English. 
Debebian  v.  Gala,  04  Md.  202,  20.5.  The  writing  may  be  in  pencil 
as  well  as  in  ink.  Brown  v.  Butchers'  Bank,  0  Hill,  443.  As  to 
the  construction  of  ambiguous  instruments,  see  section  17. 

§  II.  Date,  presumption  as  to.— Where  the  instrument 
or  an  acceptance  or  any  indorsement  thereon  is  dated,  such 
date  is  deemed  priiini  facie  to  be  the  true  date  of  the  making, 
drawing,  acceptance  or  indorsement,  as  the  case  may  be  (a). 

(a)  But  evidence  is  admissible,  as  between  the  immediate  parties, 
to  show  a  mistake  in  the  date.  Cowing  v.  Altman,  71  N.  Y.  441. 
If  the  date  is  an  impossible  one,  the  law  will  adopt  the  nearest  day. 
Thus,  if  the  date  is  written  September  31st,  the  true  date  will  be 
deemed  to  be  September  30th.  Wagner  v.  Kenner,  2  Rob.  (La.) 
120. 

§  12.  Ante-dated  and  post-dated. — The  instrument  is 
not  invalid  for  the  reason  only  that  it  is  ante-dated  or  post- 
dated, provided  this  is  wA  done  for  an  illegal  or  fraudulent 
purpose.  The  person  to  whom  an  instrument  so  dated  is 
delivered  acquires  the  title  thereto  as  of  the  date  of  deliv- 
ery (a). 

(a)  A  post-dated  bill  or  check  may  be  negotiated  before  the  day  of 
its  date.  Brewster  v.  McCardlc,  8  Wend.  478;  Pasmore  v.  North, 
13  East,  517.  In  the  case  last  cited  the  payee  who  had  negotiated 
a  post-dated  bill  died  the  day  before  the  day  of  date;  but  it  was 
held  that  the  indorsee  had  derived  title  tln-dugh  such  paj'ee,  and 
could  recover  of  the  drawer.  If  for  the  purpose  of  evading  the 
law,  a  false  date  is  inserted  in  the  instrument,  it  will  be  void  as  to 
all  persons  having  notice.     Serle  v.  Xorton,  9  ^I.  &  W.  309. 


22  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  13.  When  date  may  be  inserted. — Where  an  instru- 
ment expressed  tu  be  payable  at  a  fixed  period  after  date 
is  issued  undated,  or  where  the  acceptance  of  an  instrument 
payable  at  a  fixed  period  after  sight  is  undated,  any  holder 
may  insert  therein  the  true  date  of  issue  or  acceptance,  and 
the  instrument  shall  be  payable  accordingly  (a).  The  inser- 
tion of  a  wrong  date  does  not  a\-oid  the  instrument  in  the 
hands  of  a  subsequent  holder  in  due  course;  but  as  to  him, 
the  date  so  inserted  is  to  be  regarded  as  the  true  date  (b). 

(a)   See  next  section. 

(&)  Eedlich  v.  Doll,  54  N.  Y.  238;  Page  v.  Monell,  3  Abb.  Ct. 
App.  Dec.  433 ;  Mitchell  v.  Cuh-er,  7  Cow.  333. 

§  14.  Blanks  ;  when  may  be  filled. — Where  the  instru- 
ment is  wanting  in  any  material  particular,  the  person  in 
possession  thereof  has  a  prima  facie  authority  to  complete 
it  by  filling  up  the  blanks  therein  (a).  And  a  signature 
on  a  blank  paper  delivered  by  the  person  making  the  signa- 
ture in  order  that  the  paper  may  be  converted  into  a 
negotiable  instrument  operates  as  a  prima  facie  authority  to 
fill  it  up  as  such  for  any  amount  (&).  In  order,  however, 
that  any  such  instrument,  when  completed,  may  be  enforced 
against  any  person  who  became  a  party  thereto  prior  to  its 
completion,  it  must  be  filled  up  strictly  in  accordance  with 
the  authority  given  and  within  a  reasonable  time.  But  if  any 
such  instrument,  after  completion,  is  negotiated  to  a  holder 
in  due  course,  it  is  valid  and  effectual  for  all  purposes  in  his 
hands,  and  he  may  enforce  it  as  if  it  had  been  filled  up 
strictly  in  accordance  with  the  authority  given  and  within 
a  reasonable  time  (c). 

(a)  The  leading  authority  upon  this  point  is  Eussell  v.  Lang- 
staiTe,  2  Doug.  514.  In  that  case  a  person  had  indorsed  his  name 
on  five  copperplate  checks,  blank  as  to  amounts,  dates  and  times 
of  payment,  and  the  holder.  Galley,  filled  them  up  as  his  own  notes 


FORM    AND    INTERPRETATION.  23 

with  different  dates,  amounts  and  times  of  payment.  The  indorser 
was  held  liable  to  the  plaintiff,  who  had  discounted  them.  Lord 
Mansfield  said :  "  The  indorsement  on  a  blank  note  is  a  letter  of 
credit  for  an  indefinite  sum.  The  defendant  said:  'Trust  Galley 
for  any  amount,  and  I  will  be  his  security.'  It  does  not  lie  in  his 
mouth  to  say  the  indorsement  was  not  regular."  Sec  also  Ovrick 
V.  Colston,  7  Gratt.  189;  Frank  v.  Lilienfeld,  33  Gratt.  377;  Boyd  v. 
McCann,  10  Md.  118;  Elliot  r.  Chestnut,  30  Md.  oG2 ;  Andros- 
coggin Bank  V.  Kimball,  10  Cush.  373.  If  the  place  for  the  name 
of  the  payee  is  left  blank  the  holder  may  fill  it  up  with  his  own 
name  as  payee.  Boyd  v.  McCann,  10  Md.  118.  But  it  will  be 
noticed  that  the  authority  is  only  to  complete  the  instrument,  for 
while  there  is  an  authority  to  fill  up  blanks  in  order  to  make  the 
instrument  complete  as  such,  there  is  no  authority  to  insert  a 
special  agreement  not  essential  to  the  completeness  of  the  instru- 
ment.    Weyerhauser  v.  Dunn,  100  N.  Y.  150. 

(h)  It  is  to  be  observed  that  this  rule  applies  only  where  the 
incomplete  instrument  has  been  delivered.     See  next  section. 

(c)  If  the  instrument  be  used,  or  the  blanks  filled  up  contrary 
to  the  agreement  or  intention  of  the  original  parties,  the  maker 
is  held  to  any  hona  fide  holder  for  value,  upon  the  principle  that 
where  one  of  two  innocent  parties  must  suffer  by  the  fraud  or 
wrong  of  a  third  person  the  one  who  put  it  in  the  power  of  such 
third  person  to  commit  the  fraud  or  wrong  must  bear  the  loss.  The 
liability  of  the  maker  in  such  case  has  also,  sometimes,  been  placed 
upon  the  principle  of  estoppel;  he,  having  put  his  paper  in  circula- 
tion, and  thus  invited  the  public  to  receive  it  of  any  one  having 
apparent  title,  is  estopped  to  urge  the  actual  defect  of  title  against 
a  Una  fide  holder.  Eedlich  v.  Doll,  54  N.  Y.  234,  238.  "WTiere  one 
makes  and  delivers  a  promissory  note,  perfect  in  form,  except  that 
a  blank  is  left  after  the  word  "  at"  for  the  place  of  payment,  there 
is  an  implied  authority  for  any  bona  fide  holder  to  fill  the  blank, 
and  the  insertion  of  a  place  of  payment,  and  negotiation  of  the  note, 
contrary  to  the  agreement  of  the  original  parties,  does  not  avoid  it 
in  the  hands  of  a  hona  fide  holder  for  value.  {Id.)  So,  one  who 
intrusts  another  with  his  blank  acceptance  is  liable  to  a  holder  for 
value,  though  filled  up  for  a  sum  exceeding  that  limited  by  the 
acceptor.  Van  Duzcr  v.  Howe,  21  N.  Y.  531.  But  where  the 
amount  is  left  blank  in  the  body  of  the  note,  and  a  sum  is  indicated 
in  figures  in  the  margin,  the  amount  cannot  be  filled  in  for  a  larger 
sum  than  that  so  indicated.     Norwich  Bank  v.  Hyde,  13  Conn.  284. 


24  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  15.  Incomplete  instrument  not  delivered. —  Where 
an  incomplete  instrument  has  not  been  delivered  it  will  not,  if 
completed  and  negotiated,  without  authority,  be  a  valid  con- 
tract in  the  hands  of  any  holder,  as  against  any  person  whose 
signature  was  placed  thereon  before  delivery  (a). 

(a)  A  negotiable  instrument  must  be  complete  and  perfect  when 
it  is  issued,  or  there  must  be  authority  reposed  in  some  one  after- 
ward to  supply  anything  needed  to  make  it  perfect.  Sedgwick  v. 
McKim,  53  N.  Y.  307,  313 ;  Davis  Sewing  Machine  Co.  v.  Best,  105 
N.  Y.  59,  G7.  And  mere  negligence  on  the  part  of  the  person  sought 
to  be  held  liable  will  not  be  sufficient  to  entitle  the  holder  to  recover 
of  him  on  the  instrument.  Baxendale  v.  Bennett,  L.  E.  3  Q.  B. 
Div.  525.  Thus,  in  the  case  cited,  where  a  blank  acceptance  which 
had  been  given  to  one  person  and  returned  by  him  was  aftei-ward 
stolen  from  the  acceptor  and  another  person  filled  in  his  own  name 
and  negotiated  the  bill,  it  was  held  that  there  could  be  no  recovery 
on  such  acceptance  even  by  a  hona  fide  holder  for  value.  Barnwell, 
L.  J.,  said :  "  The  defendant  here  has  not  voluntarily  put  into  any 
one's  hands  the  means,  or  part  of  the  means,  for  committing  a 
crime.  But  it  is  said  that  he  had  done  so  through  negligence.  I 
confess  I  think  he  has  been  negligent — that  is  to  say,  I  think  if 
lie  had  had  this  paper  from  a  third  person  as  a  bailee  bound  to 
keep  it  with  ordinary  care,  he  would  not  have  done  so.  But  then 
this  negligence  is  not  the  proximate  or  effective  cause  of  the  fraud. 
A  crime  was  necessary  for  its  completion." 

§  16.     Delivery  ;    when    effectual ;    when   presumed. — ■ 

Every  contract  on  a  negotiable  instrument  is  incomplete  and 
revocable  until  delivery  of  the  instrument  for  the  purpose 
of  giving  effect  thereto  (a).  As  between  immediate  parties, 
and  as  regards  a  remote  party  other  than  a  holder  in  due 
course,  the  delivery,  in  order  to  be  effectual,  must  be  made 
either  by  or  under  the  authority  of  the  party  making,  draw- 
ing, accepting  (b)  or  indorsing,  as  the  case  may  be;  and  in 
such  case  the  delivery  may  be  shown  to  have  been  conditional, 
or  for  a  special  purpose  only,  and  not  for  the  purpose  of 
transferring  the  property  in  the  instrument.  But  where  the 
instrument  is  in  tlie  hands  of  a  holder  in  due  course,  a  valid 


FORM    AND    INTERPRETATION.  25 

delivery  thereof  by  all  parties  prior  to  him  so  as  to  make 
them  liable  to  him  is  conclusively  presumed  (c) .  And  where 
the  instrument  is  no  longer  in  the  possession  of  a  party 
whose  signature  appears  thereon,  a  valid  and  intentional 
delivery  by  him  is  presumed  until  the  contrary  is  proved  (d). 

(a)  Like  other  written  contracts,  a  bill  of  exchange  or  promissory 
note  has  no  legal  inception  or  valid  existence  as  such  until  it  has 
been  delivered  in  accordance  with  the  purpose  and  intent  of  the 
parties.     Burson  v.  Huntington,  21  Mich.  416. 

(b)  In  the  North  Carolina  Act  the  word  "  accepting"  is  omitted. 

(c)  This  provision  changes  the  law  in  some  of  the  States.  In 
some  cases  it  has  been  held  that  an  instrument  in  the  form  of  a 
negotiable  promissory  note,  which  has  never  been  delivered  by  the 
alleged  maker,  lias  no  legal  existence  as  such  note,  and  the  party 
sought  to  be  charged  upon  it  may  always,  unless  estopped  by  his 
own  negligence,  defend  successfully  against  it,  without  regard  to 
the  time  when  or  the  circumstances  under  which  it  was  acquired 
by  the  holder.  Eoberts  v.  McGrath,  38  Wis.  52;  Chipman  v. 
Tucker,  38  Wis.  43;  Griffiths  v.  Kellogg,  39  Wis.  290;  Burson  v. 
Huntington,  21  Mich.  416.  This  change,  like  some  others  made  by 
the  act,  is  in  the  direction  of  facilitating  the  circulation  of  com- 
mercial paper.  The  provision  does  not  apply,  however,  in  the  case 
of  an  incomplete  instrument  completed  and  negotiated  without 
authority.    See  section  15. 

(d)  Possession  of  the  instrument  is  prima  facie  evidence  of  title. 
Newcombe  v.  Fox,  1  App.  Div.  389. 

§  17.  Construction  vs^here  instrument  is  ambiguous.— 
Where  the  language  of  the  instrument  is  ambiguous,  or 
there  are  omissions  therein,  the  following  rules  of  construc- 
tion apply : 

1.  Where  the  sum  payable  is  expressed  in  words  and  also 
in  figures  and  there  is  a  discrepancy  between  the  two,  the 
sum  denoted  by  the  words  is  the  sum  payable;  but  if  the 
words  are  ambigitous  or  uncertain,  references  may  be  had 
to  the  figures  to  fix  the  amount  (a)  ; 

2.  Where  the  instrument  provides  for  the  payment  of 
interest,  without  specifying  the  date  from  which  interest  is 


26  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

to  run.  the  interest  runs  from  the  date  of  the  instrument,  and 
if  the  instrument  is  undated,  from  the  issue  thereof ; 

3.  Where  the  instrument  is  not  dated,  it  will  be  considered 
to  be  dated  as  of  the  time  it  was  issued  (b)  ; 

4.  Where  there  is  a  conflict  between  the  written  and 
printed  provisions  of  the  instrument,  the  written  provisions 
prevail  (c)  ; 

5.  \\'here  the  instrument  is  so  ambiguous  that  there  is 
doubt  whether  it  is  a  ])i]]  or  note,  the  holder  may  treat  it 
as  either  at  his  election  (d)  ; 

6.  \\'here  a  signature  is  so  placed  upon  the  instrument 
that  it  is  not  clear  in  what  capacity  the  person  making  the 
same  intended  to  sign,  he  is  to  be  deemed  an  indorser  (e)  ; 

7.  ^^'here  an  instrument  containing  the  words  ''I  promise 
to  pay"  is  signed  by  two  or  more  persons,  they  are  deemed 
to  be  jointly  and  severally  liable  thereon  (/). 

(a)  The  figures  in  the  margin  of  a  bill  or  note  are  regarded  as 
simply  a  memorandum  or  abridgement  for  convenience  of  refer- 
ence, and  form  no  part  of  the  instrument.  Smith  v.  Smith,  1  E.  I. 
388. 

(h)  Knisley  v.  Sampson,  100  111.  54. 
«  (c)  But  this  rule  does  not  permit  of  the  rejection  of  any  of  the 
printed  matter  which  by  any  reasonable  construction  may  be  recon- 
ciled with  the  written  part.  Miller  v.  Hannibal  &  St.  Jo.  R.  R.  Co., 
90  N.  Y.  430 ;  Magee  v.  Lovell,  L.  R.  9  C.  P.  107 ;  Joyce  v.  Realm 
Ins.  Co.  L.  R.,  7  Q.  B.  580. 

(d)  Heise  v.  Bumpass,  40  Ark.  547.  Where  the  instrument  ran 
"  On  demand,  I  promise  to  pay  A.  B.,  or  bearer,  the  sum  of  fifteen 
pounds,  value  received,"  and  was  addressed  in  the  margin  to  one 
J.  Bell,  who  wrote  upon  it,  "  Accepted,  J.  Bell,"  it  was  considered 
to  be  in  effect  the  note  of  Bell,  as  it  contained  a  promise  to  pay, 
although,  in  terms,  it  was  an  acceptance.  Block  v.  Bell,  1  M.  &  R. 
149.  Where  the  instrument  was  in  the  following  form :  "  London, 
August  5,  1833.  Three  months  after  date  I  promise  to  pay  Mr. 
John  Bury  or  order  forty-four  pounds,  eleven  shillings,  and  five 
pence,  value  received,  John  Bury,"  and  was  addressed  in  the  lower 
left-hand  corner  "  J.  B.  Grutherot,  35  Montague  Place,  Bedford 
Place,"  and  Grutherot's  name  was  written  across  the  face  as  an  ac- 
ceptance, and  Bury's  name  across  the  back  as  an  indorsement,  it  was 


FORM    AND    INTERPRETATION.  2/ 

held  that  Bury  might  be  held  either  as  the  drawer  of  the  bill  against 
Grutherot,  or  as  the  maker  of  tlie  note,  and  tlierefore  was  bound 
without  notice  of  dishonor.  Edis  v.  Bury,  6  Barn.  &  Ores.  433.  In 
another  case  the  instrument  ran :  "  Two  months  after  date  I  prom- 
ise to  pay  A.  B.  or  order  ninety-nine  pounds,  H.  Oliver,"  and  was 
addressed  to  J.  E.  Oliver  and  accepted  by  him.  The  court  said: 
"  It  is  not  unjust  to  presume  that  it  was  drawn  in  this  form  for  the 
purpose  of  suing  upon  it  either  as  a  promissory  note  or  as  a  bill  of 
exchange."     Lloyd  v.  Oliver,  18  Q.  B.  471. 

(e)  For  example,  if  a  person  should  write  his  name  across  the 
face  of  a  note,  he  would  under  this  provision  be  deemed  an  indorser. 
There  are  some  decisions  which  hold  that  in  such  case  he  would  be 
deemed  a  joint  maker.  It  is,  perhaps,  not  very  important  which 
view  is  adopted,  so  that  the  rule  upon  the  subject  is  fixed  and  cer- 
tain. Tlirdughout  tlio  act  it  has  been  the  policy  to  make  all  irreg- 
ular parties  indorsers.    See  section  64. 

(f)  Monson  V.  Drakeley,  40  Conn.  559;  Solomon  v.  Hopkins,  61 
Conn.  47;  Dart  v.  Sherwood,  7  Wis.  523.  In  the  Wisconsin  Act 
another  subdivision  is  added  as  follows :  "  8.  Where  several  writ- 
ings are  executed  at  or  about  the  same  time,  as  parts  of  the  same 
transaction  intended  to  accomplish  the  same  object,  they  may  be 
construed  as  one  and  the  same  instrument  as  to  all  parties  having 
notice  thereof." 

J;  i8.  Liability  of  person  signing  in  trade  or  assumed 
name.  —  No  person  is  liable  on  the  instrument  whose  signa- 
ture does  not  appear  thereon  (a),  except  as  herein  otherwise 
expressly  pro\'ided.  But  one  who  signs  in  a  trade  or  as- 
sumed name  w'ill  be  liable  to  the  same  extent  as  if  he  had 
signed  in  his  own  name  (b). 

(a)  Persons  dealing  with  negotiable  instruments  are  presumed 
to  take  them  on  the  credit  of  the  parties  whose  names  appear  upon 
them,  and  a  person  not  a  party  cannot  be  charged  upon  proof  that 
the  ostensible  party  signed  or  indorsed  as  his  agent.  Manu- 
facturers' Etc.  Bank  r.  Love,  13  App.  Div.  561;  Briggs  r.  Par- 
tridge, 64  N.  Y.  363. 

(6)  A  person  may  become  a  party  to  a  bill  or  note  by  any  mark 
or  designation  he  chooses  to  adopt,  provided  it  be  used  as  a  sub- 
stitute for  his  name  and  he  intends  to  be  bound  bv  it.     De  Witt  v. 


28  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Walton,  9  N.  Y.  574;  Brown  v.  Butchers'  &  Drovers'  Bank,  6 
Hill,  443. 

§  19.     Signature  by  agent ;   authority  ;  how  shown. — 

The  signature  of  any  party  may  be  made  by  a  duly  author- 
ized agent.  No  particular  form  of  appointment  is  necessary 
for  this  purpose;  and  the  authority  of  the  agent  may  be 
established  as  in  other  cases  of  agency. 

§  20.     Liability   of  person    signing    as   agent,    etc. — 

Where  the  instrument  contains  or  a  person  adds  to  his  signa- 
ture words  indicating  that  he  signs  for  or  on  behalf  of  a 
principal,  or  in  a  representative  capacity,  he  is  not  liable  on 
the  instrument  if  he  was  duly  authorized  (a)  ;  but  the  mere 
addition  of  words  describing  him  as  an  agent,  or  as  filling  a 
representative  character,  without  disclosing  his  principal, 
does  not  exempt  him  from  personal  liability  (b). 

(a)  In  the  original  di'aft  submitted  to  the  Conference  of  Com- 
missioners on  Uniformity  of  Laws  this  section  read  as  follows: 
"  Where  a  person  adds  to  his  signature  words  indicating  that  he 
signs  for  or  on  behalf  of  a  principal,  or  in  a  representative  capacity, 
he  is  not  liable  on  the  instrument;  but  the  mere  addition  of  words 
describing  him  as  an  agent,  or  as  filling  a  representative  character, 
does  not  exempt  him  from  personal  liability.  In  determining 
whether  a  signature  is  that  of  the  principal  or  of  the  agent  by 
whose  hand  it  is  written,  that  construction  is  to  be  adopted  which 
is  most  favorable  to  the  validity  of  the  instrument."  This  is  the 
English  rule,  and  was  the  rule  in  New  York  prior  to  the  statute. 
Under  that  rule  a  person  signing  for  or  on  behalf  of  a  principal 
was  not  liable  on  the  instrument,  notwithstanding  he  had  no  author- 
ity to  bind  his  principal.  There  was  an  implied  warranty  on  his 
part  that  he  possessed  such  authority,  and  if  he  did  not  he  became 
liable  upon  such  warranty  for  the  damages  resulting  from  the 
breach.  Miller  v.  Reynolds,  92  Ilun,  400.  But  no  action  could  be 
maintained  against  him  on  the  instrument  when  by  its  terms  it 
did  not  purport  to  bind  him.  And  his  liability  upon  the  implied 
warranty  did  not  accompany  the  transfer  of  the  instrument,  unless 
the  claim  founded  upon  the  warranty  was  also  assigned  to  the 
person  to  whom  the  instrument  was  transferred.     (Id.)     The  effect 


FORM    AND    INTERPRETATION'.  29 

of  the  section,  as  it  now  stands,  is  to  permit  the  holder  to  sue  the 
agent  on  the  instrument,  if  he  was  not  duly  authorized  to  sign  the 
same  on  behalf  of  the  principal. 

(fe)  Thus,  he  is  not  relieved  from  liability  by  adding  the  de- 
scriptive term  "trustee,"  Bank  v.  Looney,  99  Tenn.  278,  or 
"administrator,"  or  "guardian,"  Emm  i'.  Carroll,  1  Yergcr,  144; 
McWherter  v.  Jackson,  10  Humphrey,  208;  Carter  v.  Wolf,  1 
Heisk,  674,  or  "  a^ent,"  Sumwalt  v.  Kigeley,  2(»  Md.  loT.  Where 
a  negotiable  promissory  note  has  been  given  for  the  payment  of 
a  debt  contracted  by  a  corporation,  and  the  language  of  the  promise 
does  not  disclose  the  corporate  obligation,  and  the  signatures  to  the 
paper  are  in  the  names  of  individuals,  a  holder,  taking  bona  fide 
and  without  notice  of  the  circumstances  of  its  making,  is  entitled 
to  hold  the  note  as  the  personal  undertaking  of  its  signers,  not- 
withstanding they  affix  to  their  names  the  title  of  an  office.  Such 
an  affix  will  be  regarded  as  descriptive  of  the  persons,  and  not  of  the 
character  of  the  liability.  Unless  the  promise  purports  to  be  by 
the  corporation,  it  is  that  of  the  persons  who  subscribe  to  it;  and 
the  fact  of  adding  to  their  names  an  abbreviation  of  some  official 
title  has  no  legal  signification  as  qualifying  their  obligation,  and 
imposes  no  obligation  upon  the  corporation  whose  officers  they  may 
be.  This  rule  is  founded  on  the  general  principle  that  in  a  con- 
tract every  material  thing  must  be  definitely  expressed,  and  not  left 
to  conjecture.  Unless  the  language  creates,  or  fairly  implies,  the 
undertaking  of  the  corporation,  or  if  the  purpose  is  equivocal,  the 
obligation  is  that  of  its  apparent  makers.  Casco  National  Bank  v. 
Clark,  139  X.  Y.  307,  310;  First  Nat.  Bank  v.  Wallis.  150  N.  Y.  4.55. 

§  21.  Signature  by  procuration  ;  effect  of. — A  signa- 
ture by  "  procuration"  operates  as  notice  that  the  agent 
has  but  a  limited  authority  to  sign,  and  the  principal  is  bound 
only  in  case  the  agent  in  so  signing  acted  within  the  actual 
Hmits  of  his  authority  (a). 

(a)  The  words  "  per  procuration"  have  a  special  technical  sig- 
nificance. They  are  an  express  intimation  of  a  special  and  limited 
authority;  and  a  person  taking  a  bill  so  drawn,  accepted,  or 
indorsed,  is  bound  to  inquire  into  the  extent  of  the  authority. 
Byles  on  Bills,  33.  But  an  indorsement  by  an  agent  "per  pro" 
which  is  within  the  powers  conferred  upon  hiiu  is  binding  upon  his 
principal  as  against  bona  fide  holders  for  value,  though  the  agent 


30  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

abused  his  authority.     Bryant  v.  La  Banque  du  Peuple    [1893], 
App.  Cases,  170.     The  term  is  seldom,  if  ever,  used  in  this  country. 


§  22.     Effect  of  indorsement  by  infant  or  corporation. 

— The  indorsement  or  assignment  of  the  instrument  by  a 
corporation  or  by  an  infant  passes  the  property  therein,  not- 
withstanding that  from  want  of  capacity  the  corporation  (a) 
or  infant  (b)  may  incur  no  Hability  thereon. 

(a)  Thus,  if  a  note  should  be  drawn  payable  to  the  order  of  a 
corporation,  and  the  corporation  should  indorse  the  same  without 
consideration,  such  indorsement  would  pass  the  title  to  a  subsequent 
holder  with  notice  of  the  facts,  though  the  corporation  would 
not  be  liable  to  him  as  an  indorser.    See  note  to  section  29. 

(&)  The  statute  changes  the  law.  See  Roach  v.  Woodall,  91 
Tenn.  206.  The  change,  like  others,  was  made  to  facilitate  the 
ready  and  safe  transfer  of  commercial  paper. 

§  23.  Forged  signature  ;  effect  of.— When  a  signature 
is  forged  or  made  without  the  authority  of  the  person  whose 
signature  it  purports  to  be,  it  is  wholly  inoperative,  and  no 
riglit  to  retain  the  instrument,  or  to  give  a  discharge  there- 
for, or  to  enforce  payment  thereof  against  any  party  thereto, 
can  be  acquired  through  or  under  such  signature  (a),  unless 
the  party  against  whom  it  is  sought  to  enforce  such  right  is 
precluded  from  setting  up  the  forgery  or  want  of  author- 
ity (b). 

(a)  Buckley  v.  Second  Nat.  Bank  of  Jersey  City,  35  N.  J.  Law, 
400;  Whiteford  v.  Munroe,  17  Md.  135. 

(h)  Where  the  transaction  is  contrary  to  good  faith  and  the  fraud 
affects  individual  interests  only,  ratification  is  allowed;  but  where 
the  fraud  is  of  such  a  character  as  to  involve  a  crime  the  adjust-, 
meni  of  which  is  forbidden  by  public  policy,  the  ratification  of  the 
act  from  which  it  springs  is  not  permitted.  Forgery  does  not 
admit  of  ratification.  A  forger  does  not  act  on  behalf  of,  nor  pro- 
fess to  represent,  the  person  whose  handwriting  he  counterfeits; 
and  the  subsequent  adoption  of  the  instrument  cannot  supply  the 
authority  whifh  the  forger  did  not  profess  to  have.     Henry  Chris- 


CONSIDERATION     OF     NEGOTIABLE    IXSTRUMEXTS.         3 1 

liau  Buildiii}^'  and  Loan  Association  v.  Walton,  181  Pa.  St.  201; 
Lyson  v.  Phillips,  lUG  Pa.  St.  57.  But  cases  sometimes  arise 
where  parties  are  estopped  to  dispute  the  genuineness  of  their  sig- 
natures. Crout  t'.  DeWolf,  1  R.  I.  39.j.  Thus,  where  a  cus- 
tomer has  been  guilty  of  negligence  in  examining  the  ac- 
count and  vouchers  returned  to  him  by  his  bank,  he  will  not 
be  permitted  to  dispute  the  account  because  some  of  the 
cheeks  are  forgeries.  Leather  Manufacturers'  Nat.  Bank  v.  Morgan, 
117  U.  S.  9G.  Where  one  whose  name  has  been  forged  to  a  note 
has  received  no  benefit  from  the  forgery,  and  the  forger  was  not 
his  agent  for  any  purpose,  he  is  not  bound,  as  a  matter  of  legal 
duty,  when  the  note  is  first  shown  to  him,  lo  repudiate  or  disclaim 
at  once  the  genuineness  of  the  signature.  His  failure  to  do  so  is 
evidence,  in  the  nature  of  an  admission,  which  may  be  considered 
as  bearing  upon  the  question  whether  he  assumed  the  signature  as 
his  own,  but  it  is  not  conclusive.  Traders'  National  Bank  v. 
Rogers,  1G7  Mass.  315.  As  to  what  conduct  will  amount  to  an 
estoppel,  see  Terry  v.  Bissell,  26  Conn.  41.  Where  one  procures  a 
check  by  falsely  pretending  that  he  is  another  person,  and  indorses 
it  in  the  name  of  such  payee,  the  indorsement  conveys  no  title.  Tal- 
man  v.  American  Nat.  Bank  (li.  I.),  48  Atl.  Rep.  480  (a  case  aris- 
ing under  the  statute).  But  see  Land  Etc.  Co.  v.  Northwestern 
Nat.  Bank,  190  Pa.  St.  230. 


ARTICLE  II.* 
Consideration  of  Negotiable  Instruments. 

Section  24.    Presumption  of  consideration. 

25.  What  constitutes  consideration. 

26.  What  constitutes  holder  for  value. 

27.  ^^^l^en  lien  on  instrument  constittites  holder  for 

value. 

28.  Effect  of  want  of  consideration. 

29.  Liability  of  accommodation   party. 


*  The  numbers  of  the  sections  of  this  article  in  States  other  than 
Pennsylvania  arc  as  follows :  Colorado.  Connecticut,  District  of 
Columbia.  Florida.  ^Massachusetts.  North  Carolina.  North  Dakota.  Ore- 
gon. Tennessee,  l^tah,  Virginia,  and  Washington.  24-29;  New  York.  50- 
55;  Maryland,  4,3-48;  Rhode  Island.  32-t;7\  Wisconsin,  1675-50  to  1675- 
55- 


32  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  24.  Presumption  of  consideration. — Every  negotia- 
ble instrument  is  deemed  prima  facie  to  have  been  issued  for 
a  valuable  consideration ;  and  every  person  whose  signature 
appears  thereon  to  have  become  a  party  thereto  for  value  (a) . 

(a)  Riverside  Bank  v.  Woodhaven  June.  L.  Co.,  34  App.  Div. 
(X.  Y.)  362;  Delano  v.  Bartlett,  6  Gushing,  364;  Lines  v.  Smith,  4 
Fla.  47;  Flint  v.  Phipps,  16  Oregon  437.  This  is  the  rule,  though 
no  consideration  be  expressed.  Wilson  v.  Wilson,  26  Oregon  315. 
See  section  6.  The  statute  makes  this  rule  applicable  only  to  in- 
struments which  are  negotiable.  But  by  the  law  merchant  a  bill  of 
exchange,  though  it  lacks  the  words  payable  "  to  order,"  or  to 
"bearer,"  which  are  essential  to  negotiability  (see  sections  1,  126), 
imports  a  consideration.  Louisville  R.  R.  Co.  v.  Caldwell,  98  Ind. 
251;  Cowan  v.  ITallock,  9  Colo.  576.  The  statute  has  not  altered 
this  rule.  See  section  196.  But  as  regards  the  presumption  of  con- 
sideration ill  the  case  of  non-negotiable  notes,  the  law  of  New 
York  and  of  some  of  the  other  States  has  been  changed.  See  note 
to  section  184.  As  to  the  burden  of  proof,  see  Delano  v.  Bartlett, 
6  Cushing,  364. 

§  25.  Consideration,  what  constitutes. — Value  is  any 
consideration  sufficient  to  support  a  simple  contract  (a). 
An  antecedent  or  pre-existing  debt  constitutes  value;  and  is 
deemed  such  whether  the  instrument  is  pavable  on  demand 
or  at  a  future  time  (b). 

(a)  See  Conover  v.  Stillwell,  34  N.  J.  Law,  54;  Eaton  v.  Libbey, 
165  Mass.  218;  Whitney  v.  Clary,  145  Mass.  156;  Shawmut  Nat. 
Bank.  v.  Manson,  168  Mass.  425 ;  Raymond  v.  Sellick,  10  Conn.  480. 

(h)  This  section  makes  an  important  change  in  the  law  of  New 
York.  It  abolishes  the  rule  in  the  leading  case  of  Coddington  v. 
Bay,  20  Johns.  637,  and  the  numerous  cases  based  upon  that  de- 
cision. Brewster  v.  Shrader,  26  Misc.  (N.  Y.)  480.  In  the  case 
last  cited  Werner,  J.,  approved  of  the  view  expressed  in  the  first 
edition  of  this  work,  and  said:  "  The  language  of  this  section,  when 
given  its  usual  and  ordinary  signification,  ought  to  leave  no  room 
for  doubt  upon  the  subject.  There  is,  however,  such  a  universal 
disposition  among  lawyers  to  look  for  some  hidden  or  subtle 
meaning  in  the  most  simple  language  that  it  has  become  quite  the 


CONSIDERATION     OF    NEGOTIABLE    INSTRUMENTS.         33 

fashion  to  require  the  courts  to  construe  statutes  which  to  the 
average  lay  mind  seem  to  require  no  construction."  See  also 
Brooks  V.  Sullivan,  (N.  C.)  39  S.  E.  Rep.  822.  The  general  rule 
is  that  where  a  conveyance  is  made  or  security  taken,  the  consid- 
eration of  which  is  an  antecedent  debt,  the  grantee  or  the  person 
taking  the  security  is  not  regarded  as  a  purchaser  for  a  valuable 
consideration.  People's  Savings  Bank  v.  Bates,  120  U.  S.  556, 
565;  Weaver  v.  Borden,  49  N.  Y.  286;  Gary  v.  White,  52  N.  Y. 
138;  Wood  v.  Robinson,  22  N.  Y.  567;  Mingus  v.  Condit,  23  N.  J. 
Eq.  313.  But  in  the  Supreme  Court  of  the  United  States,  and 
in  many  of  the  State  courts,  a  distinction  has  been  made  in 
favor  of  commercial  paper,  and  the  rule  adopted  that  a  bona  fide 
holder  taking  a  negotiable  instrument  in  payment  of,  or  as  security 
for,  an  antecedent  debt,  is  a  holder  for  a  valuable  consideration 
entitled  to  protection  against  all  the  equities  between  the  ante- 
cedent parties.  Railroad  Company  v.  National  Bank,  102  U.  S. 
14;  Swift  I'.  Tyson,  16  Pet.  1;  National  Revere  Bank  v.  Morse,  163 
Mass.  381;  Roberts  v.  Hall,  37  Conn.  205;  Bridgeport  City  Bank 
V.  Welch,  29  Conn.  475;  Harrold  v.  Kays,  64  Mich.  439;  Fitzgerald 
V.  Booker,  96  Mo.  661;  Spencer  v.  Sloan,  108  Ind.  183;  Quinn  v. 
Hoord,  43  Vt.  375 ;  Armour  v.  McMichael,  36  N.  J.  Law,  92 ;  Fisher 
V.  Fisher,  98  Mass.  303 ;  Roberts  v.  Hall,  37  Conn.  205 ;  Giovanovich 
V.  Citizens'  Bank,  26  La.  Ann.  15;  Maitland  v.  Citizens' 
Nat.  Bank,  40  Md.  540;  Robins  v.  Lair,  31  Iowa  9;  Bonaud 
V.  Genesi,  42  Ga.  639.  In  the  case  of  Railroad  Company 
V.  National  Bank,  supra,  the  subject  was  exhaustively  exam- 
ined by  the  Supreme  Court  of  the  United  States,  and  the  rule 
laid  down  that  the  transfer  before  maturity  of  negotiable  paper 
as  security  for  an  antecedent  debt  merely,  without  other 
circumstances,  if  the  paper  be  so  indorsed  that  the  holder  becomes 
a  party  to  the  instrument,  although  the  contract  is  without  express 
agreement  by  the  creditor  for  an  indulgence,  is  not  an  improper 
use  of  such  paper,  and  is  as  much  in  the  usual  course  of  business 
as  its  transfer  in  payment  of  such  debt ;  and  that  in  either  case  the 
bona  fide  holder  is  unaffected  by  equities  or  defenses  between  prior 
parties  of  which  he  had  no  notice.  This  exception  to  the  general 
rule  is  based  upon  considerations  of  commercial  policy,  and  is 
peculiar  to  commercial  paper.  Prior  to  the  adoption  of  the  statute, 
the  New  York  rule  was  well  settled  that  one  who  acquired  commer- 
cial paper  as  collateral  security  for  a  pre-existing  debt  was  not  a 
holder  for  value.  Comstock  v.  Ilier,  73  N.  Y.  269;  McBride  v. 
Farmers'  Bank,  26  N.  Y.  450;  Coddington  v.  Bay,  20  Johns.  637. 


34  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

This  rule  produced  many  subtle  refinements,  and  it  would  be  impos- 
sible to  reconcile  all  the  decisions  of  the  New  York  courts  on  the 
subject.  The  statute  changes  the  law  in  several  other  States,  viz.: 
Pennsylvania,  Schaeffer  v.  Fowler,  111  Pa.  St.  451;  Tennessee, 
Martin  v.  Bank,  94  Tenn.  176;  Poach  v.  Woodall,  91  Tenn.  206; 
and  Wisconsin,  Jenkins  v.  Schnaub,  14  Wis.  1.  For  the  former 
law  in  the  case  of  accommodation  paper  pledged  as  security  see 
Stephen  v.  Monongahela  National  Bank,  88  Pa.  St.  157;  National 
Union  Bank  v.  Todd,  132  Pa.  St.  312. 

§  26.  What  constitutes  holder  for  value. — Where 
value  has  at  any  time  been  given  for  the  instrument,  the 
holder  is  deemed  a  holder  for  value  in  respect  to  all  parties 
who  became  such  prior  to  that  time  (a). 

(a)  If  a  party  becomes  a  bona  fide  holder  for  value  of  a  bill  be- 
fore its  acceptance,  it  is  not  essential  to  his  right  to  enfoi'ce  it 
against  a  subsequent  acceptor  that  an  additional  consideration 
should  proceed  from  him  to  the  drawee.  The  bill  itself  implies  a  rep- 
resentation by  the  drawer  that  the  drawee  is  already  in  receipt  of 
funds  to  pay,  and  his  contract  is  that  the  drawee  shall  accept  and 
pay  according  to  the  terms  of  the  draft.  The  drawee  can,  of  course, 
upon  presentment  refuse  to  accept,  and  in  that  event  the  only 
recourse  of  the  holder  is  against  the  prior  parties  thereto;  but  in 
case  the  drawee  does  accept  the  bill,  he  becomes  primarily  liable 
for  its  payment,  not  only  to  the  indorsees,  but  also  to  the  drawer 
himself.     Heuertematte  v.  Morris,  101  N.  Y.  70. 

§  27.  When  lien  on  instrument  constitutes  holder  for 
value. — Wliere  the  holder  has  a  lien  on  the  instrument, 
arising-  either  from  contract  or  by  implication  of  law,  lie  is 
deemed  a  holder  for  value  to  the  extent  of  his  lien  (a). 

(a)  Continental  Nat.  Bank  v.  Bell,  125  N.  Y.  38,  42 ;  Kogers  v. 
Squires,  98  N.  Y.  49;  Roach  v.  Woodall,  91  Tenn.  200.  If  a  nego- 
tiable promissory  note,  which  is  without  consideration  as  between 
the  original  parties  thereto,  is  delivered  without  consideration  to 
another  person,  who  pledges  it,  before  its  maturity,  as  collateral 
security  for  a  debt  of  his  own  for  a  less  amount  than  the  face  of 
the  note,  the  pledgees,  if  they  take  it  without  notice,  are  to  be 
deemed  holders  for  value,  and  may  maintain  an  action  thereon  for 


COXSIDERATIOX     OF     X  KdOTIA  ULK     INSTRUMENTS.         35 

the  amount  due  to  theiu  upon  the  deht  which  it  was  pledged  to 
secure.  Fisher  r.  Fislicr,  l»S  Mass.  SCi.  A  bank,  having  in 
its  possession  negotiable  securities  of  its  customer,  would  be, 
by  virtue  of  its  general  lien,  a  holder  for  value  to  the  extent  of 
the  balance  due  from  such  customer.  So,  any  person  to  whom 
negotiable  securities  are  pledged  as  collateral  would  be  deemed  a 
holder  for  value  to  the  extent  of  the  amount  due  to  him.  But  if 
such  securities  should  be  sold  to  pay  such  balance  or  debt,  the  pur- 
chaser, if  a  holder  in  due  course  within  section  52,  though  he  shfjuld 
pay  less  than  their  face  value  for  them,  could  enforce  them  for  the 
full  amount  thereof.    See  section  57. 

§  28.  Effect  of  want  of  consideration. ^Absence  or 
faikire  of  consideration  is  matter  of  defense  as  against  any 
person  not  a  holder  in  due  conrse  (o)  ;  and  partial  failure 
of  consideration  is  a  defense  pro  taiito  (b).  whether  the 
failure  is  an  ascertained  and  liquidated  amount  or  other- 
wise (c). 

(a)  As  between  the  immediate  parties  to  a  negotiable  promissory 
note,  while  the  note  itself  is  i)rima  facie  evidence  of  the  considera- 
tion, the  question  of  consideration  is  always  open;  and  it  is 
competent  to  the  defendant  to  show,  by  parol,  that  there  was  no 
sufficient  consideration,  or  that  the  consideration  has  failed,  or  that 
the  paper  was  given  for  accommodation  merely.  Ingersoll  v. 
Martin,  58  Md.  67;  Corlies  v.  Howe,  11  Gray,  125;  Breneman  v. 
Furniss,  90  Pa.  St.  186.  The  burden  of  proving  the  failure  of  con- 
sideration is  on  the  party  alleging  it.  Jennison  v.  Stafford,  1  Cush. 
168.  Total  failure  of  consideration  does  not  impose  upon  an  inno- 
cent holder  the  burden  of  proving  that  he  gave  value  for  the  paper. 
"Wilson  r.  Lazier,  11  Gratt.  477;  Albrecht  v.  Atrimpler,  7  Pa.  St. 
476.  The  failure  of  consideration  does  not  affect  the  negotiability  of 
the  instrument.  Dingman  v.  Amsink,  77  Pa.  St.  114.  The  right 
to  interpose  the  defense  of  want  of  consideration  is  governed  by 
the  lex  loci  Herdic  v.  Eoessler,  109  N.  Y.  127,  133,  134.  Upon 
an  exchange  of  promissory  notes,  each  note  is  a  valid  considei'ation 
for  the  other,  and  is  fully  available  in  the  hands  of  the  holder;  and 
the  fact  that  one  of  the  notes  is  not  paid  at  maturity  does  not 
sustain  a  defense  of  failure  of  consideration  in  an  action  upon  the 
other.  Rice  v.  Grange,  131  N.  Y.  149 ;  Woman  r.  Frost,  52  N.  Y. 
422. 


36  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

(h)  Black  V.  Eigway,  131  Mass.  80;  Cline  v.  Miller,  8  Md.  274; 
Davis  V.  Wait,  12  Oregon  425. 

(c)  The  rule,  both  in  this  country  and  in  England,  has  been  that 
whenever  the  defendant  is  entitled  to  go  into  the  question  of  con- 
sideration he  may  set  up  the  partial,  as  well  as  the  total,  want  of 
consideration.  Daniel  on  Negotiable  Instruments,  §  210.  But 
it  has  been  held  in  some  cases  that  the  part  alleged  to  have  failed 
must  be  distinct  and  definite,  for  only  a  total  failure  or  the  failure 
of  a  specific  and  ascertained  part  can  be  availed  of  by  way  of 
defense;  and  in  the  case  of  an  unliquidated  claim  the  party  must 
resort  to  his  cross  action.  Pulsifer  v.  Hotehkiss,  12  Conn.  234; 
Drew  V.  Towle,  7  Fost.  412;  Moggridge  v.  Jones,  14  East.  485; 
Trickey  v.  Larne,  6  M.  &  W.  278.  In  other  cases  it  is  held  that  the 
defendant  may  recoup  his  damages  though  they  be  unliquidated. 
Davis  V.  Wait,  12  Oregon  425 ;  Wyckhoff  v.  Runyon,  33  N.  J.  Law, 
107.  As  to  what  is  necessary  to  constitute  one  a  holder  in  due 
course,  see  sections  26,  52. 

§  29.  Liability  of  accommodation  party. — An  ac- 
commodation party  is  one  who  has  signed  the  instrument 
as  maker,  drawer,  acceptor  or  indorser,  without  receiving 
value  therefor,  and  for  the  purpose  of  lending  his  name  to 
some  other  person  (a).  Such  a  person  is  liable  on  the  instru- 
ment to  a  holder  for  value,  notwithstanding  such  holder 
at  the  time  of  taking  the  instrument  knew  him  to  be  only 
an  accommodation  party  (b). 

(a)  An  accommodation  note,  in  the  strict  sense,  is  a  loan  of 
the  maker's  credit,  without  instructions  as  to  the  manner  of  its 
use.  Lenheim  v.  Wilmarding,  55  Pa.  St.  73.  He  cannot  set  up 
as  a  defense  that  it  was  given  without  consideration ;  for  this  would 
defeat  the  very  purpose  for  which  it  was  made.  Carpenter  v.  Na- 
tional Bank  of  the  Republic,  106  Pa.  St.  170-172.  In  respect  to 
third  persons  the  law  considers  him  in  the  character  he  has  assumed 
and  will  not  permit  him  to  allege  that  the  paper  to  which  he  gave 
his  name  was  an  imposition,  nor  to  gainsay  its  reality  by  proof 
that  it  was  a  fiction.  It  shall  be  taken  pro  veritate  that  he  was  the 
maker,  for  de  veritate  that  was  the  very  thing  he  was  intended  to 
be.  Bank  of  Montgomery  County  v.  Walker,  9  S.  &  R.  229; 
Stephen  v.  Monongahela  National  Bank,  88  Pa.  St.  157,  162-3. 
And  this  is  the  rule  though  the  note  be  pledged  merely  as  collateral 


CONSIDERATION'    OF    NEGOTIABLE    INSTRUMENTS.         3/ 

security  for  the  debt  of  the  paj^ee.  Lord  v.  Ocean  Bank,  20  Pa.  St. 
384.  A  mutual  exchange  of  notes  will  amount  to  a  sufficient  con- 
sideration, so  that  notes  will  not  be  regarded  as  accommodation 
paper.  Williams  v.  Banks,  11  Md.  198;  Rice  t'.  Grange,  131  N.  Y. 
149 ;  Woman  r.  Frost,  52  N.  Y.  422. 

(b)  But  an  accommodation  indorser  has  the  right  to  retract  his 
indorsement  at  any  time  before  the  paper  is  negotiated.  His  con- 
sent to  be  indorser  is  necessary  to  make  him  such.  PTe  cannot 
be  compelled  to  indorse  whether  he  will  or  no;  and  as  the  instru- 
ment is  a  mere  blank  piece  of  paper  until  it  passes  into  other  hands 
for  valuable  consideration,  it  follows  that  he  has  the  same  right  to 
retract  the  indorsement  already  made  as  he  had  to  refuse  his 
indorsement  in  the  first  instance;  that  is,  his  indorsement  and  his 
continuing  to  be  so  are  alike  voluntary  until  rights  arise  by  the 
negotiation  to  third  parties.  Berkely  v.  Tinsley,  88  Va.  1001,  1004. 
And  the  purchaser  of  an  accommodation  note,  after  its  maturity, 
gets  no  better  nor  greater  right  to  enforce  it  against  the  maker 
or  indorser  than  if  it  were  ordinary  negotiable  paper  given  for 
value.  Cottrell  v.  Watkins,  89  Va.  801.  The  provision  of  the 
statute  does  not  apply  to  corporations,  which,  as  a  general  rule,  are 
without  power  to  bind  themselves  as  accommodation  parties.  A 
national  bank  has  no  such  power.  National  Bank  of  Commerce  v. 
Atkinson,  55  Fed.  Rep.  465,  27  U.  S.  App.  88 ;  nor  has  a  State  bank. 
The  Bank  of  Genesee  v.  The  Patchin  Bank,  13  N.  Y.  309; 
Farmers'  &  Mechanics'  Bank  r.  Butchers'  &  Drovers'  Bank,  16 
N.  Y.  125,  128;  Morford  v.  The  Farmers'  Bank  of  Saratoga  County, 
26  Barb.  568;  nor  a  manufacturing  corporation,  The  Central  Bank 
V.  the  Empire  Stone  Dressing  Co.,  26  Barb.  23;  The  Bridgeport 
City  Bank  v.  The  Empire  Stone  Dressing  Co.,  30  Barb.  421 ;  The 
Farmers'  &  Mechanics'  Bank  r.  The  Empire  Stone  Dressing  Co., 
5  Bosw.  275;  Wahlig  v.  The  Standard  Pump  Manufacturing  Co., 
25  N.  Y.  St.  Repr.  804;  Filon  i'.  The  Miller  Brewing  Co.,  38 
N.  Y.  St.  Repr.  602;  ]\ronument  National  Bank  r.  Globe  Works, 
101  Mass.  57;  nor  a  railroad  company,  Davis  v.  Old  Colony  Rail- 
road Company.  131  ]\rass.  258;  nor  a  warehousing  and  security  com- 
pany, The  National  Park  Bank  v.  G.  A.  M.  W.  *!c  S.  Co.,  116  X.  Y. 
281 ;  nor  a  life  insurance  company,  .Etna  National  Bank  r.  Charter 
Oak  Life  Insurance  Company,  50  Conn.  167;  nor  a  turnpike  com- 
pany. Hall  V.  Auburn  Turnpike  Co.,  27  Cal.  256;  nor  an  oil 
company,  Culver  v.  Reno  Real  Estate  Company,  91  Penn.  St.  367. 
No  corporations  organized  under  the  statutes  of  New  York  are 
authorized  to  bind  the  property  of  their  shareholders  bv  accom- 


38  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

modation  indorsements.  Fox  v.  Rural  Home  Co.,  90  Hun,  365, 
367.  But  where  a  corporation  is  authorized  to  take  a  note  for  any 
purpose,  the  presumption  in  regard  to  any  note  executed  to  it  is 
that  it  was  executed  for  a  legitimate  purpose.  Howard  v.  Boorman, 
17  Wis.  459;  Lehigh  Valley  Coal  Co.  v.  West  Depere  Agr.  Works, 
63  Wis.  45.  An  indorsement  by  a  partner  of  his  separate  accom- 
modation note  with  the  name  of  his  firm  is  a  sufficient  indication 
of  the  nature  of  the  transaction  to  make  it  the  duty  of  the  bank 
which  discounts  it  to  inquire  into  his  authority  to  use  the  firm 
name  for  the  occasion,  unless  there  are  circumstances  from  which 
the  authority  can  be  implied.  Tanner  v.  Hall,  1  Pa.  St.  417. 
The  statute  does  not  change  the  rule  that  an  accommodation 
party  has  the  right  to  determine  for  himself  what  use  shall  be  made 
of  the  instrument  which  he  signs.  He  may  impose  material  or 
immaterial  conditions  and  terms,  and  no  person  can  enforce  the 
instrument  against  him  who  takes  it  in  violation  of  such  terms 
and  conditions  and  with  notice  thereof.  Benjamin  v.  Rogers,  126 
xC.  Y.  60.  Thus,  where  the  defendant  indorsed  a  note  upon  the 
condition  that  it  should  not  be  negotiated  in  New  York,  assigning 
as  a  reason  that  he  did  not  wish  to  be  sued  upon  it  in  this  State, 
it  was  held  that,  while  the  restriction  did  not  seem  to  be  material, 
yet  the  diversion  was  a  defense  to  the  indorser  as  against  one  who 
was  not  a  holder  for  value.  United  States  Nat.  Bank  v.  Ewing,  131 
N.  Y.  506.     But  see  Rogers  v.  Sipley,  35  N.  J.  Law,  86. 


ARTICLE  IIL* 
Negotiation. 

Section  30.  What  constitutes  negotiation. 

31.  Indorsement;  how  made. 

32.  Indorsement  must  be  of  entire  instrument. 

33.  Kinds  of  indorsement. 

34.  Special  indorsement ;  indorsement  in  blank. 

*  The  numbers  of  the  sections  of  this  article  in  States  other  than 
Pennsylvania  are  as  follows:  Colorado,  Connecticut,  District  of 
Columbia,  Florida,  Massachusetts,  North  Carolina,  North  Dakota,  Ore- 
gon, Tennessee,  Utah.  Virginia,  and  Washington.  ."^0-50:  New  York,  60- 
80;  Maryland,  40-69;  Rhode  Island,  38-58;  Wisconsin,  1676-1676-20. 


NEGOTIATION.  39 

Section  ^•^..  Blank    indorsement ;    how    changed    to    special 
indorsement. 
36.   W'lien  indorsement  restricti\e. 
T,/.  Effect  of  restrictive  indorsement;  rights  of  in- 
dorsee. 

38.  Qualified  indorsement. 

39.  Conditional  indorsement. 

40.  Indorsement  of  instrument  payable  to  bearer. 

41.  Indorsement    where   payable   to    two    or    more 

persons. 

42.  Effect  of  instrument  drawn  or  indorsed  to  a 

person  as  cashier. 

43.  Indorsement  where  name  is  misspelled,  et  cetera. 

44.  Indorsement  in  representative  capacity. 

45.  Time  of  indorsement;  presumption. 

46.  Place  of  indorsement ;  presumption. 

47.  Continuation  of  negotiable  character. 

48.  Striking  out  indorsement. 

49.  Transfer  without  indorsement ;  effect  of. 

50.  ^^'hen  prior  party  may  negotiate  instrument. 

§  30.  What  constitutes  negotiation. —  An  instrument 
is  negotiated  when  it  is  transferred  from  one  person  to  an- 
other in  such  manner  as  to  constitute  the  transferee  the 
holder  thereof.  If  payable  to  bearer  (a)  it  is  negotiated  by 
delivery;  if  payable  to  order  (/;)  it  is  negotiated  by  the  in- 
dorsement (c)  of  the  holder  completed  by  delivery  (d). 

(a)  As  to  wliat  instruments  are  payable  to  bearer,  see  section 
9. 

(6)   As  to  what  instruincnt?!  are  payable  to  order,  see  section  8. 

(c)  An  indorsement  is  usually  written  on  the  back  of  the  instru- 
ment, but  the  place  is  not  essential.  Tf  the  payee  write  his  name  on 
any  part  of  the  instrument,  with  the  intention  of  indorsinp:  it,  that 
is  a  sufficient  indorsement.     ITaines  v.  Dubois,  29  N.  J.  Law,  259. 

(d)  The  indorsement  alone  without  delivery  conveys  no  title. 
Dann    r.   Norris,   24   Conn.    33Y;    Clark    r.    Sis:ourney,   17   Conn. 


40  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

520;  Middleton  v.  Griffith,  57  N.  J.  Law,  442.  Spencer  v. 
Carstarphen,  15.  Colo.  445.  As  between  the  original  parties  and 
others  having  notice,  a  conditional  delivery,  as  well  as  want  of 
consideration,  may  be  shown;  and  parol  evidence  that  the  delivery 
was  conditional,  and  of  the  terms  of  the  condition,  is  not  open  to 
the  objection  of  varjdng  or  contradicting  the  written  contract. 
Iliggins  V.  Ridgeway,  153  N.  Y.  130;  Persons  v.  Hawkins,  41  App. 
Div.  (N.  Y.)  171;  Simmons  v.  Thompson,  29  App.  Div.  (N.  Y.) 
559;  Eicketts  v.  Pendleton,  14  Md.  320;  McFarland  v.  Sikes,  54 
Conn.  250.  But  a  parol  agreement,  although  entered  into  at  the 
time  of  making  negotiable  paper,  that  the  payee  will  not  negotiate 
it  and  will  renew  it,  etc.,  is  inadmissible  to  vary  the  effect  of  the 
paper.  Heist  v.  Hart,  73  Pa.  St.  286.  So,  it  has  been  held  that 
evidence  of  an  oral  agreement  that  payment  was  not  to  be  called 
for  until  certain  paintings  of  the  maker  had  been  sold  is  an  attempt 
to  vary  the  written  contract.  Wooley  v.  Cobb,  165  Mass.  503.  See 
Woods  Son  Co.  v.  Schaefer,  173  Mass.  443.  By  the  statutes  of 
some  of  the  States,  notes  made  payable  to  a  person  named  therein 
or  bearer  must  be  indorsed  to  pass  the  legal  title.  Garvin  v.  Wis- 
well,  83  111.  218 ;  Blackman  v.  Lehman,  63  Ala.  547. 

§  31.  Indorsement ;  how  made. — The  indorsement  must 
be  written  on  the  instrument  itself  or  upon  a  paper  attached 
thereto  (a).  The  signature  of  the  indorser,  without  ad- 
ditional words,  is  a  sufficient  indorsement  (b). 

(a)  Crosby  v.  Roub,  16  Wis.  616;  Folger  v.  Chase,  18  Pick.  63; 
French  v.  Turner,  15  Ind.  59.  The  rule  as  commonly  stated  is,  that 
where  there  is  not  room  on  the  bill,  the  indorsement  may  be  on  an 
allonge.  But  it  is  not  necessary  that  there  should  be  a  physical 
impossibility  of  writing  the  indorsement  on  the  instrument  itself; 
it  may  be  on  an  allonge,  whenever  the  necessity  or  convenience 
of  the  parties  requires  it.  See  cases  above  cited.  Besides,  any 
such  statement  of  the  rule  would  give  rise  to  a  question  of  fact 
which  might  be  determined  variously.  But  see  Bishop  v.  Chase, 
156  Mo.  158;  Franklin  v.  Twogood,  Iowa,  515;  Peach  v.  Bligh,  37 
111.  317;  Haskell  v.  Brown,  65  111.  29;  Wall  v.  Hollenbeck,  19  Neb. 
639. 

(h)  This  is  the  customary  and  mercantile  form  of  indorsement. 
But  an  indorsement  of  a  promissory  note  as  follows,  "  For  value 
received,  I  hereby  assign,  transfer  and  set  over  to  B  all  my  right. 


NEGOTIATION.  4^ 

title,  interest  and  claim  in  the  within  note,"  passes  a  legal  title  to 
the  same  and  does  not  destroy  its  negotiability.  Hall  v.  Toby,  110 
Pa.  St.  318. 

§  32.  Indorsement  must  be  of  entire  instrument.— 
The  indorsement  must  he  an  indorsement  of  the  entire  instru- 
ment. An  indorsement,  which  purports  to  transfer  to  the 
indorsee  a  part  only  of  the  amount  payalile,  or  which  pur- 
ports to  transfer  the  instrument  to  two  or  more  indorsees 
severally,  does  not  operate  as  a  negotiation  of  the  instrument 
(a).  But  where  the  instrument  has  been  paid  in  part,  it  may 
be  indorsed  as  to  the  residue  (b). 

(a)  For  example,  where  a  note  for  $500  was  indorsed,  "  Pay  to 
L  four  hundred  dollars  out  of  this  note,"  it  was  held  that  L  could 
not  recover  from  the  maker.    Lindsay  v.  Price,  33  Tex.  282. 

(h)  The  indorsement  of  a  partial  payment  on  the  instrument 
does  not  render  it  non-negotiable.  Smith  v.  Shippey,  182  Pa.  St. 
24. 

§  33.  Kinds  of  indorsement. — An  indorsement  may  be 
either  special  or  in  blank ;  and  it  may  also  be  either  restrictive 
or  ciualified,  or  conditional. 

§  34.  Special  indorsement  ;  indorsement  in  blank. — 
A  special  indorsement  specifies  the  person  to  whom,  or  to 
whose  order  the  instrument  is  to  be  payable ;  and  the  indorse- 
ment of  such  indorsee  is  necessary  to  the  further  negotiation 
of  the  instrument.  An  indorsement  in  blank  specifies  no 
indorsee,  and  an  instrument  so  indorsed  is  payable  to  bearer, 
and  may  be  negotiated  by  delivery  (a). 

(a)  See  section  9. 

§  35.  Blank  indorsement ;  how  changed  to  special 
ndorsement.  —  The  holder  ni;  y  convert  a  blank  indorse- 
ment into  a  special  indorsement  by  writing  over  the  signa- 
ture of  the  indorser  in  blank  any  contract  consistent  with 
the  character  of  the  indorsement  (a). 


42  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

((j)  Beckwith  r.  Angell,  6  Conn.  317.  Thus,  he  might  write 
over  it  a  special  indorsement  to  himself  or  to  some  other  person. 
But  he  could  not  write  over  it  a  contract  of  guaranty;  for  the 
effect  of  this  would  be  to  deprive  the  indorser  of  his  right  of  notice 
in  case  of  non-payment.  Belden  v.  Hann,  61  Iowa  42.  Such  a 
contract  would  be  inconsistent  with  the  character  of  the  indorse- 
ment. 


§  36.  When  indorsement  restrictive. — An  indorsement 
is  restrictive,  which  either: 

1.  Prohibits  the  further  negotiation  of    the  instrument 

(a);  or 

2.  Constitutes   the   indorsee   the   agent   of   the   indorser 

(b)  ;  or 

3.  \'ests  the  title  in  the  indorsee  in  trust  for  or  to  the  use 
of  some  other  person  (c). 

But  the  mere  absence  of  words  implying  power  to  negoti- 
ate does  not  make  an  indorsement  restrictive  (^O- 

(a)   "Pay  Bank  of  A  only"  would  be  such  an  indorsement  as 

is  meant  here. 

(&)  The  most  frequent  instance  of  this  is  the  indorsement  "for 
collection."  Such  indorsement  ^oes  not  transfer  the  title  to  the 
indorsee,  but  constitutes  him  merely  an  agent  to  present  the  paper, 
and  receive  payment  thereof  for  the  account  of  the  owner.  Com- 
mercial National  Bank  v.  Armstrong,  148  U.  S.  50;  National 
Butchers'  and  Drovers'  Bank  v.  Hubbell,  117  N.  Y.  384;  Armstrong 
V.  National  Bank  of  Boyertown,  90  Ky.  431 ;  Freeman's  Bank  v. 
National  Tube  Works,  151  Mass.  413 ;  Sweeney  v.  Easter,  1  Wall. 
173;  Commercial  National  Bank  v.  Hamilton  National  Bank,  42 
Fed.  Rep.  880 ;  City  Bank  of  Sherman  v.  Weiss,  68  Tex.  332 ;  Cen- 
tral R.  R.  Co.  V.  First  National  Bank  of  Lynchburg,  73  Ga.  384; 
Bank  of  Metropolis  v.  First  National  Bank  of  Jersey  City,  19  Fed. 
Rep.  658;  Blaine  v.  Bourne,  11  R.  I.  119;  Cecil  Bank  v.  Farmers' 
Bank,  22  Md.  148;  Northwestern  National  Bank  v.  Bank  of  Com- 
merce, 107  Mo.  402.  As  to  the  liability  of  an  indorser  to  whom  the 
instrument  has  been  indorsed  "  for  collection,"  see  note  to  section 
66. 

(c)  Lloyd  V.  Sigourney,  5  Bing.  252;  3  M.  &  P.  229;  Snee  v. 
Prescott,  1  Atk.  245.     Illustration:  Pay  A  for  account  of  B.     In 


NEGOTIATION.  43 

such  case  the  title  passes  to  A;  but  the  indorsement  is  restrictive  to 
the  extent  that  it  gives  notice  that  the  instrument  cannot  be  nego- 
tiated by  A  for  liis  own  debt  or  for  his  own  benefit.  Hook  v.  Pratt, 
78  K  Y.  371,  375. 

((/)  Thus,  if  the  instrument  is  drawn  to  the  order  of  A,  his 
indorsement  "  Pay  to  B"  does  not  restrict  the  further  negotiation 
of  the  instrument,  though  the  words  "  or  order"  are  not  included 
in  the  indorsement.     See  Leavitt  v.  Putnam,  3  N.  Y.  49-i. 


§37.  Effect  of  restrictive  indorsement;  rights  of 
indorsee. — .\  restrictive  indorsement  confers  upon  the  in- 
dorsee the  right : 

1.  To  receive  payment  of  the  instrument; 

2.  To  bring  any  action  thereon  that  the  indorser  could 
bring  (a); 

3.  To  transfer  his  rights  as  such  indorsee,  where  the  form 
of  the  indorsement  authorizes  him  to  do  so. 

But  all  subsequent  indorsees  acquire  only  the  title  of  the 
first  indorsee  under  the  restrictive  indorsement. 

(a)  The  holder  of  negotiable  paper  may  sue  in  his  own  name, 
though  but  an  agent  for  others.  Ward  i'.  Tyler,  52  Pa.  St.  393. 
The  statute  enables  a  bank  to  sue  in  its  own  name  on  paper  indorsed 
to  it  "  for  collection."  As  to  whether  this  could  bo  done  before  the 
statute  there  was  some  conflict  in  the  authorities.  The  right  is 
sustained  by  Wilson  v.  Tolson,  79  Ga.  137 ;  Cummings  v.  Kohn,  12 
Mo.  App.  585;  Wintermute  v.  Torrent,  83  Mich.  555;  Kegina  Flour 
Mill  Co.  V.  Holmes,  156  Mass.  11;  Spofford  i'.  Norton,  120  Mass. 
333;  Whiten  v.  Ilayden,  9  Allen,  408;  Roberts  v.  Parrish,  17  Oregon 
583;  McDaniel  v.  Pressler,  3  Wash.  636;  Ward  v.  Tyler,  52  Pa.  St. 
393.  But  in  Rock  County  National  Bank  v.  Hollister  (21  Minn. 
385)  it  was  held  that  the  provisions  of  the  Code  iv(|uiring  the  action 
to  be  brought  in  the  name  of  the  real  party  in  interest  would  pre- 
vent an  indorsee  to  whom  the  instrument  was  indorsed  "  for 
collection"  from  maintaining  the  action. 

§  38.  Qualified  indorsement. — A  qualified  indorsement 
constitutes  the  indorser  a  mere  assignor  of  the  title  to  the 


44  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

instrument.  It  may  be  made  by  adding  to  the  indorser's 
signature  the  words  "  without  recourse"  or  any  words  of 
similar  import  (a).  Such  an  indorsement  does  not  impair 
the  negotiable  character  of  the  instrument  (b). 

(a)  Grant  v.  Fleming,  46  Pa.  St.  140;  Cowles  v.  Harts,  3  Conn. 
522.  But  the  words  employed  must  clearly  indicate  that  the  in- 
dorser  intends  to  disclaim  liability.  Fassin  v.  Hubbard,  55  N.  Y. 
470.  Hence,  where  the  payee  writes  above  his  signature  an  assign- 
ment in  the  following  form,  "  I  hereby  assign  the  within  note  to — " 
this  does  not  relieve  him  from  hability  as  an  indorser.  Markey  v. 
Corey,  108  Mich.  184.  The  words  "  without  recourse"  fol- 
lowing the  name  of  the  first,  and  preceding  the  name  of  a  second, 
indorser  may,  as  between  them,  be  shown  by  parol  evidence  to  apply 
to  the  former  instead  of  to  the  latter.  Corbett  v.  Fetzer,  47  Neb. 
269.  And  this  although  the  second  indorsee  took  it  without  know- 
ing that  the  limitation  was  applicable  to  the  first  indorser.  Fitch- 
burg  Bank  v.  Greenwood,  2  Allen,  434. 

(h)  A  qualified  indorsement  in  no  respects  affects  the  negotia- 
bility of  the  instrument,  but  simply  qualifies  the  duties,  obligations 
and  responsibilities  of  the  indorser  resulting  from  the  general  prin- 
ciples of  the  law.  Stewart  v.  Preston,  1  Fla.  10,  22.  And  whatever 
interest  would  pass  by  a  general  or  full  indorsement  will  pass  by 
a  qualified  indorsement.  Stewart  v.  Preston,  1  Fla.  10,  22 ;  Epler  v. 
Funk,  8  Pa.  St.  468.  If  the  indorsement  is  in  blank,  without  re- 
course, any  subsequent  holder  is  authorized  to  fill  up  the  blank 
with  his  own  name  as  indorser.  Lyon  v.  Ewings,  17  Wis.  61.  A 
qualified  indorsement  is  not  such  a  departure  from  the  usual  course 
of  business  as  to  put  the  transferee  on  inquiry  as  to  the  equities 
between  the  original  parties.  Bisbing  v.  Graham,  14  Pa.  St.  14; 
Lomax  V.  Picot,  2  Rand.  260. 

§  39,  Conditional  indorsement. — Where  an  indorse- 
ment is  conchtional,  a  party  reciuired  t(^  pay  the  instrument 
may  disregard  the  condition  and  make  payment  to  the  in- 
dorsee or  his  transferee,  whether  tlie  condition  has  l)een 
fulfilled  or  not  (a).  But  any  j)erson  to  whom  an  instrument 
so  indorsed  is  negotiated  will  hold  the  same,  or  the  proceeds 
thereof,  subject  to  the  rights  of  the  person  indorsing  condi- 
tionally (b). 


NEGOTIATION.  45 

(a)  The  first  sentence  is  the  same  as  soc^tion  33  of  the  Eiiylish 
Bills  of  Exchange  Act  with  a  slight  modification.  In  his  note  to 
that  section  JucIkc  Chalmers  says:  "This  section  alters  the  law. 
It  was  formerly  held  that  if  a  bill  was  indorsed  conditionally,  the 
acceptor  paid  it  at  his  peril  if  the  condition  was  not  fulfilled.  This 
was  hard  on  him.  If  he  dishonored  the  bill  he  might  be  liable 
to  damages,  and  yet  it  might  be  impossible  for  him  to  find  out  if 
the  condition  had  been  fulfilled."  See  Daniel  on  Xeg.  Inst.,  sec- 
tions G97,  G08«.  There  appear  to  be  no  American  cases  upon  the 
subject;  and  the  only  English  case  is  Eobertson  v.  Kensington  (4 
Taunt.  30). 

(h)  The  rule  adopted  here  is  somewhat  analogous  to  that  which 
gives  to  an  indorser  who  has  paid  a  note  in  part  an  equitable  right 
pro  tanto  in  the  proceeds,  where  the  holder  afterward  collects  the 
whole  amount  of  the  note  from  the  maker.  See  Madison  Square 
Bank  i'.  Pierce,  137  N.  Y.  444. 

§  40.  Indorsement  of  instrument  payable  to  bearer. 
— Where  an  instrument,  payable  to  bearer,  is  indorsed 
specially,  it  may  nevertheless  be  further  negotiated  by 
delivery  (a)  ;  but  the  person  indorsing  specially  is  lial)le 
as  indorser  to  only  such  holders  as  make  title  through  his 
indorsement. 

(a)  See  Johnson  v.  Mitchell,  50  Tex.  212;  Smith  v.  Clarke, 
Peake,  225;  Daniel  on  Neg.  Inst.,  sections  G63a,  (idH.  Where  a 
bill  accepted  and  indorsed  by  the  payee,  in  blank,  was  by  the  next 
holder  indorsed  specially,  it  was  held,  that  the  first  indorsement 
being  in  blank,  the  bill  was  afterward  transferable  by  mere  delivery, 
and  that  a  holder,  by  delivery,  might  strike  out  the  special  indorse- 
ment and  in  a  suit  against  the  acceptors  declare  and  recover,  as  the 
indorsee  of  the  payee.     Mitchell  v.  Fuller,  15  Pa.  St.  268. 


vj  41,  Indorsement  where  payable  to  two  or  more 
persons. — Where  an  instrument  is  i)ayable  to  the  order  of 
two  or  more  payees  or  indorsees  who  are  not  partners,  all 
must  indorse,  unless  the  one  indorsing  has  authority  to 
indorse  for  the  others. 


-lO  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

vj  42.  Effect  of  instrument  drawn  or  indorsed  to  a 
person  as  cashier. — Where  an  instrument  is  drawn  or 
indorsed  to  a  person  as  "  cashier"  or  other  fiscal  officer  of  a 
bank  or  corporation,  it  is  deemed  prima  facie  to  be  payable 
to  the  bank  or  corporation  of  which  he  is  such  officer;  and 
may  be  negotiated  by  either  the  indorsement  of  the  bank  or 
corporation,  or  the  indorsement  of  the  officer  (a). 

(a)  It  is  common  practice  for  banks  to  indorse  in  this  manner 
paper  remitted  for  collection.  The  rule  above  stated  as  to  indorse- 
ments to  cashiers  of  banks  is  supported  by  the  following  cases: 
Bank  of  the  State  v.  Muskingum  Bank,  29  N.  Y.  619 ;  First  Nat. 
Bank  V.  Hall,  44  IST.  Y.  395 ;  Bank  of  Genesee  v.  Patchin  Bank,  19 
N.  Y.  312;  Folger  v.  Chase,  18  Pick.  63;  Farmers'  etc..  Bank  v. 
Troy  City  Bank,  1  Dough.  (Mich.)  457;  Watervliet  Bank  v.  White, 
1  Denio,  608;  Lookout  Bank  v.  Aull,  93  Tenn.  645.  The  commis- 
sioners deemed  it  wise  to  extend  the  rule  to  all  fiscal  officers  of  cor- 
porations. Under  this  provisiou  an  indorsement  to  the  treasurer 
of  a  savings  bank  would  make  the  paper  payable  to  the  bank.  So 
of  an  indorsement  to  the  secretary  of  a  trust  company. 

§  43.  Indorsement  where  name  is  misspelled,  et  cet- 
era.—  Where  the  name  of  a  payee  or  indorsee  is  wrongly 
designated  or  misspelled,  he  may  indorse  the  instrument  as 
therein  described,  adding,  if  he  think  fit,  his  proper  sig- 
nature (a). 

(a)  Thus,  one  who,  while  carrying  on  business  on  his  own  ac- 
count in  the  name  of  a  company  which  has  been  incorporated,  but 
not  organized,  receives  in  payment  of  a  debt  contracted  with  him 
in  such  business  a  promissory  note  payable  to  the  order  of  the 
corporation,  may  transfer  the  note  by  indorsing  it  in  his  own  name. 
Bryant  v.  Eastman,  7  Cush.  111.  Conversely,  a  man  will  be  bound 
by  paper  made  by  him  in  the  name  he  adopts  in  his  business.  Sal- 
mon V.  Hopkins,  61  Conn.  47. 

§  44.  Indorsement  in  representative  capacity. — Where 
any  person  is  under  obligation  to  indorse  in  a  representative 
capacity,  he  may  indorse  in  such  terms  as  to  negative  per- 
sonal liability  (a). 


NEGOTIATION.  47 

(a)  As  to  the  liability  of  executors  and  administrators  who 
accept  or  indorse,  see  Schmittler  v.  Simon,  101  N.  Y.  554. 

§  45.  Time  of  indorsement ;  presumption. — Except 
where  an  indorsement  bears  date  after  the  maturity  of  the 
instrument,  every  negotiation  is  deemed  prima  facie  to  have 
been  effected  before  the  instrument  was  overdue  (a). 

(a)  Mason  v.  Noonan,  7  Wis.  609.  If  the  defendant  alleges  that 
the  paper  was  indorsed  after  it  was  due,  the  burden  of  proof  is  on 
him  to  show  it.  White  v.  Camp.,  1  Fla.  94.  This  rule  is  important 
because  that,  in  order  to  constitute  one  a  holder  in  due  course,  he 
must  have  taken  the  instrument  before  it  was  overdue.  See  sec- 
tion 91.  The  indorsement  of  an  overdue  note  cannot  relate  back 
to  the  date  of  the  note;  as  a  new  and  independent  contract,  it 
takes  effect  from  the  time  it  is  made,  and  must  be  determined  by 
the  laws  then  in  force  and  the  circumstances  then  existing.  Brown 
V.  Hull,  33  Gratt.  23,  30. 

§  46.     Place    of    indorsement ;     presumption. — Except 

where  the  contrary  appears  every  indorsement  is  presumed 
prima  facie  to  have  been  made  at  the  place  where  the  instru- 
ment is  dated  (a). 

(a)  As  an  indorsement  is  not  merely  a  transfer  of  the  instrument, 
but  is  a  new  and  substantive  contract  embodying  in  itself  all  the 
terms  of  the  instrument,  the  place  where  it  was  made  often  be- 
comes of  importance.  See  Ingalls  v.  Lee,  9  Barb.  947;  Brown  v. 
Hull,  33  Gratt.  27,  29;  Smith  v.  Caro,  9  Oregon  278;  Bank  of 
British  N.  Am.  v.  Ellis,  6  Sawyer,  98 ;  Freese  v.  Brownell,  35  N.  J. 
Law  285.  For  example,  an  indorsement  in  ^lassachusetts  of  a 
note  executed  and  payable  in  New  York  is  a  Massachusetts  con- 
tract, and  governed  by  the  law  of  that  State.  Glidden  v.  Cham- 
berlin,  167  Mass.  486. 

§  47.  Continuation  of  negotiable  character. — An  in- 
strument negotial)le  in  its  origin  continues  to  be  negotiable 
until  it  has  been  restrictively  indorsed  or  discharged  by 
payment  or  otherwise  (a). 


48  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

(a)  Cumberland  Bank  v.  Hann,  3  Harr.  (N.  J.)  222.  The  law  is 
perfectly  well  settled  that  a  note  or  bill  negotiable  in  form  is  nego- 
tiable as  well  after  as  before  it  becomes  due.  National  Bank  of 
Washington  v.  Texas,  20  Wall.  72.  McSherry  v.  Brooks,  46  Md. 
103,  118;  French  v.  Jarvis,  29  Conn.  347;  Adair  v.  Lenox,  15 
Oregon  489.  But  the  rights,  duties  and  obligations  of  the  parties 
are  by  no  means  the  same.  The  instrument  becomes,  according  to 
legal  effect,  payable  on  demand,  so  far  as  the  indorser  is  concerned ; 
and  presentment  for  payment  must  be  made  within  a  reasonable 
time,  and  due  notice  of  the  dishonor  given  to  the  indorser.  Brown 
V.  Hull,  33  Gratt.  23,  28;  Berry  v.  Eobinson,  9  Johns.  121;  Van 
Hoosen  v.  Van  Alstyne,  3  Wend.  79;  Poole  v.  Tolleson,  1  McCord, 
200 ;  Patterson  v.  Todd,  18  Pa.  St.  426 ;  Rosson  v.  Carroll,  90  Tenn. 
But  if  the  paper  was  presented  at  maturity  and  notice  of  dishonor 
given  to  prior  parties  it  is  not  necessary  that  the  indorsee  after 
maturity  should,  in  order  to  hold  them,  present  the  paper  again  and 
give  them  then  notice  of  dishonor;  for  the  original  demand  and 
notice  were  to  the  benefit  of  all  subsequent  holders.  Prench  v.  Jar- 
vis,  29  Conn.  347.  As  to  the  discharge  of  negotiable  instruments, 
see  sections  200-206. 

§  48.  Striking  out  indorsement.— The  holder  may  at 
any  time  strike  out  any  indorsement  which  is  not  necessary 
to  his  title  (a).  The  indorser  whose  indorsement  is  struck 
out,  and  all  indorsers  subsequent  to  him,  are  thereby  reHeved 
from  liabiHty  on  the  instrument. 

(a)  He  may  strike  out  all  intervening  indorsements,  and  aver 
that  the  first  blank  indorser  indorsed  immediately  to  himself. 
Byles  on  Bills,  149 ;  Preston  v.  Mann,  25  Conn.  127 ;  Bank  of  Amer- 
ica V.  Senior,  11  R.  I.  376.  This  may  be  done  at  the  trial,  and  after 
the  plaintiff  has  finished  his  case.  Mayer  v.  Jadis,  1  M.  &  Rob. 
247.  See  also  Morris  v.  Cude,  57  Tex.  337;  Rand  v.  Dovey,  83 
Pa.  St.  281;  Merz  v.  Kaiser,  20  La.  Ann.  379;  Vanarsdale  v.  Hax, 
107  Fed.  Rep.  878. 

§  49.  Transfer  without  indorsement ;  effect  of. — 
Where  the  holder  of  an  instrument  payable  to  his  order 
transfers  it  for  value  without  indorsing  it,  the  transfer  vests 
in  the  transferee  such  title  as  tlje  transferrer  had  therein,  and 


RIGHTS    OF    THE    HOLDER.  49 

the  transferee  acquires,  in  addition,  the  ri,i;ht  to  have  the 
indorsement  of  the  transferrer  {a).  Ihit  \ny  the  purpose  of 
determining  whether  the  transferee  is  a  holder  in  due  course, 
the  negotiation  takes  effect  as  of  the  time  when  the  indorse- 
ment is  actually  made  (b). 

(a)  Siiupsou  V.  Hall,  47  Conn.  417.  Thus,  the  purchaser  of  a 
certified  check,  payable  to  order,  who  obtains  title  without  the  in- 
dorsement of  the  payee,  holds  it  subject  to  all  equities  between  the 
original  parties,  although  he  paid  full  consideration,  without  notice. 
Goshen  National  Jiank  v.  Bingham,  118  N.  Y.  349;  Jenkinson  v. 
Wilkinson,  110  N.  C.  532.  And  an  intention  on  the  part  of  the 
payee  and  transferee  to  have  the  paper  indorsed  is  not  sufficient, 
at  least  in  the  absence  of  an  express  agreement  to  indorse.  It  is 
the  act  of  indorsement,  not  the  intention,  which  negotiates  the 
instrument.     Goshen  National  Bank  v.  Bingham,  supra. 

(h)  An  indorsement  after  notice  of  a  defense  does  not  relate  back 
to  the  transfer,  so  as  to  cut  off  intervening  rights  and  remedies. 
(Id.)  But  in  Beard  v.  Dedolph  (29  Wis.  136)  it  was  held  that  the 
holder  is  protected  against  everything  subsequent  to  delivery,  the 
indorsement  being  held  to  relate  back  to  the  time  of  delivery  as  to 
any  equity  outside  of  the  note  itself. 

§  50.  When  prior  party  may  negotiate  instrument. — 
AMiere  an  instrument  is  negotiated  hack  to  a  prior  party, 
such  i:)arty  may,  suhject  to  the  provisions  of  this  act,  reissue 
and  further  negotiate  the  same.  But  he  is  not  entitled  to 
enforce  payment  thereof  against  any  intervening  party  to 
wdiom  he  was  personally  liahle. 


ARTICLE  IV.* 

Rights  oi^  the  Holder. 

Section  5L   Right  of  holder  to  sue:  ])ayment. 

52.  What  constitutes  a  holder  in  due  course. 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of 
Columbia,  Florida,  Massachusetts.  North  Carolina,  North  Dakota.  Ore- 
gon, Tennessee,  Utah,  Virginia  and  Washin.gton.  .=;i-59;  New  York.  90- 
98;  Maryland,  70-78;  Rhode  Island.  59-67;  Wisconsin,  1676-21-1676-29. 


50  THE    NEGOTIAP.I.I-:    IXSTRr^rENTS    LAW. 

Section  53.   When  person  not  deemed  holder  in  due  course. 

54.  Notice  before  full  amount  paid. 

55.  When  title  defective. 

56.  What  constitutes  notice  of  defect. 
k7.  Rio-hts  of  holder  in  due  course. 

58.  \\'hen  subject  to  original  defenses. 

59.  Who  deemed  holder  in  due  course. 

§  51.  Right  of  holder  to  sue  ;  payment. — The  holder 
of  a  negotiable  instrument  may  sue  thereon  in  his  own  name 
{a)  ;  and  payment  to  him  in  due  course  discharges  the  instru- 
ment {h). 

(a)  This  applies  to  a  holder  to  whom  the  instrument  is  indorsed 
restrietively.  See  section  37  and  note.  Where  the  plaintiff  is  the 
payee,  the  production  of  the  paper  is  sufficient.  Williams  v.  Holt, 
170  Mass.  351.  And  where  the  instrument  is  payable  to  bearer,  or, 
if  payable  to  order,  is  indorsed  in  blank,  possession  is  sufficient  evi- 
dence of  title  on  which  to  maintain  the  action.  ISTewcomb  v.  Fox, 
1  App.  Div.  389 ;  Weber  v.  Orton,  91  Mo.  680.  The  court  will  never 
inquire  whether  he  sues  for  himself  or  as  trustee  for  another,  nor 
into  the  right  of  possession,  unless  on  an  allegation  of  mala  fides. 
Ellicott  V.  Martin,  6  Md.  509.  And  the  prima  facie  case  made  in 
favor  of  the  plaintiff  by  his  possession  of  the  instrument  can  not,  in 
the  absence  of  mala  fides,  be  rebutted  by  evidence  that  the  title  was 
in  some  other  party.  {Id.)  As  a  general  rule,  possession  by  the 
attorney  for  a  party  is  possession  by  the  party  himself.  Kunkel  v. 
Spooner,  9  Md.  462. 

(h)  The  maker  of  a  note,  in  order  to  avail  himself  of  the  defense 
of  payment  before  maturity,  must  show  that  the  indorsee  had  prior 
notice  of  the  payment.     Yenney  v.  Central  City  Bank,  44  Neb.  402. 

§  52.     What  constitutes  a  holder   in   due   course. — A 

holder  in  due  course  is  a  holder  who  has  taken  the  instru- 
ment under  the  following  conditions : 

r.  That  it  is  complete  and  regular  upon  its  face  (a)  ; 

2.  That  he  became  the  Imlder  of  it  before  it  was  overdue 
(b),  and  without  notice  that  it  had  been  previously  dis- 
honored, if  such  were  the  fact ; 


RlGliTS    OF    THE    HOLDER.  5^ 

3.  That  he  took  it  in  good  faith  and  for  value  (c)  ; 

4.  That  at  the  time  it  was  negotiated  to  him  he  had  no 
notice  of  any  iiitimiily  in  the  instrument  or  defect  in  the  title 
of  the  person  negotiating  it  ( </). 

(a)  To  deterniiiie  the  character  of  an  indorsee  as  a  ho7ia  fide 
holder  for  value  without  notice,  the  point  of  time  at  which  he  parts 
with  his  money  is  the  important  fact.  If  the  paper  was  then  on  its 
face  irregular — out  of  the  usual  course  of  business — the  effect  of 
that  knowledge  on  the  indorsee  could  not  be  prevented  by  subse- 
quently putting  it  in  a  regular  shape.  Losee  v.  Bissell,  76  Pa.  St. 
459,  402.  As  to  incomplete  instruments,  and  the  authority  to  fill 
up  blanks  therein,  see  section  33. 

(t)  McKim  V.  King,  58  Md.  502;  Marsh  v.  Marshall,  53  Pa.  St. 
396;   Davis   v.  Miller,   14   Gratt.   1;    Cottrell   r.   Watkins,   89   Va. 
801.      At    one    time    it    was    doubted    whether    the    mere    fact 
that   a   negotiable   note   was   overdue   at    the   time   of   the   trans- 
fer   was    in    itself    sufficient    to    affect    the    title    of  the  holder, 
and   whether    it   was    not   necessary   that    there   should   be   some- 
thing on   the  face  of   the  paper  besides  the   day   of   payment  to 
show  that  it  had  been  actually  dishonored.     This  doubt  was  ex- 
pressed by  Lord  Kenyon  in  Brown  v.  Davies,  3  T.  K.  80,  decided 
in  1789;  but  Ashurst  and  Buller,  J.J.,  were  of  opinion  that  the  mere 
fact  of  its  being  overdue  at  the  time  of  the  transfer  was  sufficient 
to  affect  the  title,  and  that  one  taking  a  note  under  such  circum- 
stances takes  it  upon  the  credit  of  the  transferrer.     Subsequently 
in  Boehm   v.   Sterling,  7  T.  R.   423-430,  Lord  Kenyon  gave  his 
assent  to  the  rule  thus  laid  down,  and  it  has  never  since  been  ques- 
tioned.    A  promissory  note  matures  when,  by  its  terms,  the  princi- 
pal becomes  due;  aiul  one  who  purchases  it  in  good  faith,  for  value, 
before   maturity,   is   within    the   protection   of   the   law    merchant, 
although  interest  is  overdue  at  the  time  of  such  purchase.     Kelley 
V.  Whitney,  45  Wis.  110.     But  see  Hart  v.  Stickney,  41  Wis.  630; 
Newell   V.   Gregg,   51   Barb.   253.     But   a  note  payable  by  instal- 
ments is  overdue  when   the  first  instalment   is   overdue   and   un- 
paid,   and    one   who    takes    it    afterward    takes    it    subject    to    all 
equities  between  the  original  parties.     Vinton    v.  King,  4  Allen, 
562.     A     transfer     upon     the     day    of     maturity     is     before     the 
instrument  is  overdue;  for  the  principal  debtor  has  the  whole  of 
that  day  in  which  to  pay.     Continental  Nat.  Bank  v.  Townsend, 
87  N.  Y.  8.     But  see  Sargent  v.  Southgate,  5  Pick.  312;  Ayer  v. 
Hutchins,  4  l\rass.  370;  Pine  v.  Smith,  11  Gray,  38.     A  check  de- 


52  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

posited  with  a  banlv  on  the  day  of  its  date  can  not  be  considered  as 
overdue  when  so  deposited.  Shawmut  National  Bank  v.  Manson, 
168  Mass.  425. 

(c)  Where  the  payees  give  the  usual  written  direction  in  accom- 
modation notes,  at  the  foot  of  the  note,  "  credit  the  drawer,"  and 
the  note  is  afterward  discounted  in  bank,  or  found  in  the  posses- 
sion of  any  person  not  a  party  to  the  original  transaction,  the  pre- 
sumption is  that  the  holder  is  a  holder  for  value,  and  that  the 
drawer  received  the  proceeds  according  to  the  directions  so  given. 
Steckel  v.  Steckel,  28  Pa.  St.  233,  235.  As  to  what  will  constitute 
value,  see  section  25.  Prima  faci'i  value  is  presumed.  See  sec- 
tion 24. 

(d)  As  to  wliat  is  necessary  to  constitute  notice,  see  section  56. 

§  53-     When  person  not  deemed  holder  in  due  course. 

— Where  an  instrument  payable  on  demand  is  negotiated  an 
unreasonable  length  of  time  after  its  issue,  the  holder  is  not 
deemed  a  holder  in  due  course  (a). 

(a)  As  to  what  is  a  reasonable  time  will  depend  upon  the  facts 
of  the  particular  case.  See  section  4.  No  absolute  measure  can 
be  fixed.  A  day  or  two,  Field  v.  Nickerson,  13  Mass.  131, 137 ;  seVen 
days,  Thurston  v.  McKenn,  6  Mass.  428 ;  and  even  a  month.  Ranger 
V.  Cory,  1  Mete.  369,  is  not  too  long ;  while  eight  months,  American 
Bank  V.  Jenness,  2  Mete.  288;  Ayres  v.  Hutchins,  4  Mass.  370; 
Xevins  v.  Townsend,  6  Conn.  7 ;  three  months  and  a  half,  Stevens  v. 
Brice,  21  Pick.  193;  and  even  two  months  and  a  half,  Losee  v. 
Durkin,  7  J.  R.  70;  and  Sice  v.  Cunningham,  1  Cowen,  397,  404, 
have  been  deemed  sufficient  to  discredit  a  note.  Coupons  payable 
to  bearer  are,  when  overdue,  subject  to  equities;  they  are  not  in 
this  respect  like  bank  notes.     McKim  v.  King,  58  Md.  502. 

§  54.  Notice  before  full  amount  paid.  —  Where  the 
transferee  receives  notice  of  any  infirmity  in  the  instrument 
or  defect  in  the  title  of  the  person  negotiating  the  same 
before  he  has  paid  the  full  amount  agreed  to  be  paid  therefor, 
he  will  be  deemed  a  holder  in  due  course  only  to  the  extent 
of  the  amount  theretofore  paid  by  him  (a). 

(a)  Dresser  v.  Missouri  Etc.  R.  R.  Construction  Co.,  93  U.  S. 


RIGHTS    Oi"    THE    iLOLDER.  53 

93.     The  case  falls  witliin  the  general  rule  that  the  portion  of  an 
unperformed  contract  which  is  completed  after  notice  of  a  fraud 

is    not    within    the    in-inciiilo    whicli    protects    a    bona    fide    pur- 
chaser.    (Id.) 

§55-  When  title  defective. — The  title  of  a  person  who 
negotiates  an  instrument  is  defective  within  the  meaning  of 
this  act  when  he  obtained  the  instrument,  or  any  signature 
thereto,  by  fraud,  duress,  or  force  and  fear,  (a)  or  other 
unlawful  means,  or  for  an  illegal  consideration,  or  when  he 
negotiates  it  in  breach  of  faith,  or  under  such  circumstances 
as  amount  to  a  fraud  (b). 

(a)  Commercial  paper  executed  under  duress  is  void,  even  though 
there  may  be  some  consideration  to  support  it.  Magoon  v.  Reber, 
76  Wis.  392. 

(h)  The  fraud  in  putting  tlie  paper  into  circulation  must  be  a 
fraud  against  the  defendant.  Kinney  v.  Kruse,  28  Wis.  183.  Thus, 
the  fact  that  one  who  held  possession  of  a  note  for  the  payee  put 
it  in  circulation  in  fraud  of  his  rights  is  no  defense  in  a  suit  by  the 
holder  against  the  maker.  (Id.)  And  where  the  fraud  consists  in 
the  misapplication  of  the  proceeds  received  for  the  paper  it  will  not 
affect  the  paper  in  the  hands  of  the  holder,  as  he  is  not  in  any  man- 
ner bound  to  look  to  their  application,  nor  responsible  for  the  mis- 
appropriation of  them.  Gray's  Admr.  v.  Bank  of  Kentucky,  29  Pa. 
St.  3G5.  Thei'e  is  no  distinction  between  obtaining  a  note  by  fraud 
and  fraudulently  putting  it  in  circulation.  National  Revere  Bank 
V.  Morse,  1G3  Mass.  381,  385.  In  the  W^isconsin  Act  the  following 
is  added:  ''And  the  title  of  such  person  is  absolutely  void  when 
such  instrument  or  signature  was  so  procured  from  a  person  who 
did  not  know  the  nature  of  the  instrument  and  could  not  have 
attained  such  knowledge  by  the  use  of  ordinary  care." 

§  56.  What  constitutes  notice  of  defect. — To  consti- 
tute notice  of  an  inlirniity  in  the  instrument  or  defect  in 
the  title  of  the  person  negotiating  the  same,  the  person  to 
whom  it  is  negotiated  must  have  had  actual  knowledge  of 
the  infirmity  or  defect,  or  knowledge  of  such  facts  that  his 
action  in  taking  the  instrument  amotinted  to  bad  faith  (a). 


54  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

(a)  The  holder  is  not  bound  at  his  peril  to  be  on  the  alert  for  cir- 
cumstances which  might  possibly  excite  the  suspicion  of  wary  vigi- 
lance; he  does  not  owe  to  the  party  who  puts  the  paper  afloat  the 
duty  of  active  inquiry  in  order  to  avert  the  imputation  of  bad  faith. 
The  rights  of  the  holder  are  to  be  determined  by  the  simple  test  of 
honesty  and  good  faith,  and  not  by  a  speculative  issue  as  to  his  dili- 
gence or  negligence.  The  holder's  rights  cannot  be  defeated  with- 
out proof  of  actual  notice  of  the  defect  in  title  or  bad  faith  on 
his  part  evidenced  by  circumstances.  Though  he  may  have  been 
negligent  in  takii.g  the  paper,  and  omitted  precautions  which  a 
prudent  man  would  have  taken,  nevertheless,  unless  he  acted  mala 
fide,  his  title,  according  to  settled  doctrine,  will  prevail.  Cheever  v. 
Pittsburgh,  Shenango  &  Lake  Erie  K.  R.  Co.,  150  N.  Y.  59,  65; 
American  Exchange  National  Bank  v.  New  York  Belting  etc.  Co., 
148  N.  Y.  705 ;  Knox  v.  Eden  Musee  Am.  Co.,  148  N.  Y.  454 ;  Cana- 
joharie  National  Bank  v.  Diefendorf ,  123  N.  Y.  202 ;  Vosburgh  v. 
Diefendorf,  119  N.  Y.  357;  Jarvis  v.  Manhattan  Beach  Co.,  148 
N.  Y.  652;  Murray  v.  Lardner,  2  Wall.  110;  Swift  v.  Smith,  102 
U.  S.  442 ;  Belmont  v.  Hoge,  35  N.  Y.  65 ;  Welsh  v.  Sage,  47  N.  Y. 
143;  Nat.  Bank  of  Republic  v.  Young,  41  N.  J.  Eq.  531;  Fifth 
Ward  Sav.  Bank  v.  First  Nat.  Bank,  48  N.  J.  Law  513;  Credit 
Company  v.  Howe  Machine  Co.,  54  Conn.  357;  Ladd  v.  Franklin, 
37  Conn.  64;  Croft's  Appeal,  42  Conn.  154;  Morton  v.  N.  A.  &  Selma 
Ry.  Co.,  79  Ala.  590 ;  Phelan  v.  Moss,  67  Pa.  St.  59 ;  Moorehead  v. 
Ciilmore,  77  Pa.  St.  118;  Second  National  Bank  v.  Morgan,  165 
Pa.  St.  199 ;  Frank  v.  Lilienfeld,  33  Graft.  377.  While  gross  care- 
lessness will  not,  as  a  matter  of  law,  defeat  title  in  a  purchaser  for 
value,  it  may  constitute  evidence  of  bad  faith.  Canajoharie  Na- 
tional Bank  V.  Diefendorf,  123  N.  Y.  191.  The  payment  of  value 
is  a  circumstance  to  be  taken  into  account,  with  other  facts,  in 
determining  the  good  faith  of  the  purchaser,  but  it  is  not  con- 
clusive. Cunningham  v.  Scott,  90  Hun,  410,  411.  And  while  the 
mere  fact  that  paper  has  been  purchased  at  a  discount  will  not, 
ordinarily,  be  evidence  of  bad  faith,  yet  where  the  discount  is  very 
large,  that  circumstances  may  be  considered,  in  connection  with 
other  facts,  in  determining  the  question  of  the  purchaser's  good 
faith.     Williams  v.  Huntington,  68  Md.  590. 

The  mere  fact  that  the  holder  for  value  of  a  promissory  note 
made  by  a  third  party  receives  it  from  a  person  engaged  in  tlie 
note-brokerage  business,  as  collateral  security  for  a  loan  to  such 
broker,  is  not  sufficient  to  raise  a  doubt  as  to  the  authority  of  the 
broker  to  so  deal  with  the  note.     American  Ex.  Nat.  Bank  v.  New 


RIGHT:;    OF    THE    llOEDKR.  55 

York  Belting  and  Packing  Company,  148  N.  Y.  698.  And  a  bank 
has  a  right  to  assume,  as  to  notes  offered  to  it,  whether  for  discount 
or  as  collateral  security,  by  a  customer  who  has  an  account  with  it, 
and  who  is  in  the  habit  of  borrowing-  money  from  it,  that  the  cus- 
tomer is  acting  in  good  faith  and  within  his  lawful  rights;  and  the 
fact  that  the  customer  is  engaged  in  the  business  of  note-brokerage 
is  not  enough  to  deprive  the  bank  of  the  right  to  indulge  in  such 
assumi)ti()n.  (Id-)  The  fraudulent  misappropriation  by  the 
broker  of  the  proceeds  of  discount  is  not  sufficient  to  put  the  holder 
to  the  proof  of  his  bona  fides.  Sloan  v.  The  Union  Banking  Com- 
pany, 67  Pa.  St.  470. 

One  who  receives  the  notes  of  a  corporation  from  one  of  its 
officers  in  payment  of,  or  as  security  for,  a  personal  debt  of  such 
officer  does  so  at  his  peril.  Prima  facie  the  act  is  unlawful,  and, 
unless  actually  authorized,  the  purchaser  will  be  deemed  to  have 
taken  them  with  notice  of  the  rights  of  the  corporation.  Wilson  v. 
Metropolitan  Ey.  Co.,  120  "N.  Y.  145,  150.  And  where  the  maker 
of  a  note,  which  is  payable  to  his  order,  and  pui'ports  to  be  indorsed 
by  a  corporation,  procures  it  to  be  discounted  for  his  own  benefit, 
this  of  itself,  if  unexplained,  is  notice  that  the  indorsement  is  not 
made  in  the  usual  course  of  business,  but  is  for  the  accommodation 
of  the  maker.  National  Park  Bank  v.  German- American  Mutual 
"Warehousing  and  Security  Company,  116  N.  Y.  281. 

§57.  Rights  of  holder  in  due  course.— A  holder  (a) 
in  due  course  holds  the  instrument  free  from  any  defect  of 
title  of  prii  ir  parties  and  free  from  defenses  available  to  prior 
parties  among-  themselves,  (b)  and  may  enforce  payment 
of  the  instrument  for  the  full  amount  thereof  (c)  against  all 
parties  liable  thereon  ((/). 

(a)  The  payee  will  be  protected  as  a  hotia  fide  holder  to  the  same 
extent  and  under  like  conditions  as  an  indorsee.  Lookout  Bank  v. 
Aull,  93  Tenn.  645. 

(b)  As  this  provision  is  general,  and  the  statute  provides  for  no 
exceptions,  it  makes  a  change  in  the  law  of  many  States.  Por  ex- 
ample, it  was  formerly  held  in  some  States  that  a  note  given  in  a 
gambling  transaction,  thuuizh  negotiable  in  form,  was  void  in  the 
hands  of  an  innocent  holder  for  value.  Harper  r.  Young,  112 
Pa.  St.  419;  Emerson   v.  Townsond,  7.".  :\rd.  224;  Snoddy  r.  Bank, 


56  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

88  Tenn.  573.     And  in  some  States  a  similar  rule  obtained  in  the 
case  of  notes  tainted  with  usury.     (As  to  the  effect  of  the  Tennessee 
Statutes  see  Bradshaw  v.  Van  Valkenberg,  97  Tenn.  316,  320.)     So 
of  notes  obtained  from  the  maker  by  fraud.     Lowers  v.  Thomas,  62 
Wis.   480;   ^Yalker  v.  Ebert,   29  Wis.   194;   Foster   v.   McKinnon, 
L.  R.  4  C.  P.  704.     But  probably  none  of  these  defenses  are  good 
under  the  statute.     The  change  was  made  to  facilitate  the  circu- 
lation of  commercial  paper.     In  Wirt  v.  Stubblefield,  17  App.  Cas. 
D.  C.  283,  it  was  held  that  under  the  Negotiable  Instruments  Law 
a  ho7ia  fide  holder  may  enforce  a  promissory  note  against  the  maker, 
even  though  the  note  was  given  for  a  gambling  debt,  and  that  this 
statute  has  repealed  the  statutes  of  16  Car.  2  Ch.  7  and  9  Anne, 
Ch.  14,  which  were  in  force  in  the  District  of  Columbia.     In  the 
course  of  the  opinion  it  was  said  by  Alvey,   C.   J. :  "  We  know, 
moreover,  that  the  great  and  leading  object  of  the  act,  not  only 
with  Congress,  but  with  the  large  number  of  the  principal  com- 
mercial States  of  the  Union  that  have  adopted  it,  has  been  to  estab- 
lish a  uniform  system  of  law  to  govern  negotiable  instruments 
wherever  they  might  circulate  or  be  negotiated.     It  was  not  only 
uniformity  of  rules  and  principles  that  was  designed,  but  to  em- 
body in  a  codified  foi-m,  as  fully  as  possible,  all  the  law  upon  the 
subject,  to  avoid  conflict  of  decisions,  and  the  effect  of  mere  local 
laws  and  usages  that  have  heretofore  prevailed.     The  great  object 
sought  to  be  accomplished   by  the   enactment   of   the   statute,   to 
free  the  negotiable  instrument,  as  far  as  possible,  from  all  latent 
or   local    infirmities    that    would    otherwise    inhere    in    it    to    the 
prejudice  and  disappointment  of  innocent  holders  as  against  all  the 
parties  to  the  instrument  professedly  bound  thereby.     This  clearly 
could  not  be  effected  so  long  as  the  instrument  was  rendered  abso- 
lutely null  and  void  by  local  statute,  as  against  the  original  maker 
or  acceptor,  as  is  the  case  by  the  operation,  indeed,  by  the  express 
provision,  of  the  statutes  of  Charles  and  Anne."     It  is  to  be  hoped 
that  other  courts  having  to  construe  the  act  will  take  an  equally 
liberal  and  enlightened  view.    For  the  former  rule  in  Pennsylvania 
in  such  cases  see  Northern  Nat.  Bank  v.  Arnold,  187  Pa.  St.  356. 

(c)  This  is  the  rule  of  the  Supreme  Court  of  the  United  States. 
Croniwell  v.  County  of  Sac,  96  U.  S.  60.  There  is  considerable 
conflict  in  the  decisions  of  the  State  courts.  In  the  case  cited  the 
Supreme  Court  said:  "We  are  of  opinion  that  a  purchaser  of  a 
negotiable  security  before  maturity,  in  cases  where  he  is  not  per- 
sonally chargeable  with  fraud,  is  entitled  to  recover  its  full  amount 
against  its  maker,  though  he  may  have  paid  less  than  its  par  value, 


RIGHTS    OF    THE    HOLDER.  57 

whatever  may  have  been  its  original  infirmity.  We  are  aware  of 
numerous  decisions  in  conflict  with  this  view  of  the  law;  but  we 
think  the  sounder  rule,  and  the  one  in  consonance  with  the  com- 
mon understanding-  and  usage  of  commerce,  is  that  the  purchaser, 
at  whatever  price,  takes  the  benefit  of  the  entire  obligation  of  the 
maker.  Public  securities  and  those  of  private  corporations  are 
constantly  fluctuating  in  price  in  the  market,  one  day  being  above 
par  and  the  next  below  it,  and  often  passing  within  short  periods 
from  one-half  of  their  nominal  to  their  full  value.  Indeed,  all  sales 
of  such  securities  are  made  with  reference  to  prices  current  in  the 
market,  and  not  with  reference  to  their  par  value.  It  would  intro- 
duce, therefore,  inconceivable  confusion  if  bona  fide  purchasers  in 
the  market  were  restricted  in  their  claims  upon  such  securities  to 
the  sums  they  had  paid  for  them.  This  rule  in  no  respect  im- 
pinges upon  the  doctrine  that  one  who  makes  a  loan  upon  such 
paper,  or  takes  it  as  collateral  security  for  a  precedent  debt,  may 
be  limited  in  his  recovery  to  the  amount  advanced  or  secured." 
See  also  Birrell  v.  Dickerson,  64  Conn.  61;  Eowland  v.  Fowler,  47 
Conn.  349;  Williams  v.  Huntington,  68  Md.  590;  Moore  v.  Baird, 
30  Pa.  136.  The  statute  changes  the  rule  in  New  York.  Harger  v. 
Wilson,  63  Barb.  237;  Huff  v.  Wagner,  63  Barb.  230;  Todd  i-.  Shel- 
bourne,  8  Hun,  512.  See  also  Holcomb  v.  Wyckoff,  35  N.  J.  Law 
38 ;  Bramliall  v.  Atlantic  National  Bank,  36  N.  J.  Law  243 ;  Oppen- 
heimer  v.  Farmers'  and  Mechanics'  Bank,  97  Tenn.  19.  But  where 
the  note  has  been  taken  as  collateral  security,  the  pledgee  can  re- 
cover only  to  the  extent  of  the  debt  due  him,  where  the  pledgor  has 
no  right  to  recover  at  all.  Chicopee  Bank  v.  Chapin,  8  Mete.  40. 
See  Sec.  54.  For  cases  where  the  purchaser  has  paid  only  part  of 
the  amount  agreed  to  be  paid  before  receiving  notice,  see  section  93. 
{d)  In  the  Wisconsin  Act  the  following  is  added :  "  Except  as 
provided  in  sections  1944  and  1945  of  these  statutes,  relating  to 
insurance  preiniums,  and  also  in  cases  whei'e  the  title  of  the  person 
negotiating  such  instrument  is  void  under  the  provision  of  section 
1676-25  of  this  act." 

§  58.  When  subject  to  original  defenses. —  Tn  the 
hands  of  anv  holder  otlicr  than  a  holder  in  (hie  course,  a  ne- 
gotiable instrument  is  su1)ject  to  the  same  defenses  as  if  it 
were  non-negotiable  (a).  But  a  holder  who  derives  his  title 
through  a  holder  in  due  course,  and  who  is  not  himself  a 
party  to  any  fraud  or  illegality  affecting  the  instrument,  has 


58  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

all  the  rights  of  such  former  holder  in  respect  of  all  parties 
prior  to  the  latter  (b). 

(a)  It  was  not  deemed  expedient  to  make  provision  as  to  what 
equities  the  transferee  will  be  subject  to;  for  the  matter  may  be 
affected  by  the  statutes  of  the  various  States  relating  to  set-off 
and  counter-claim.  In  an  act  designed  to  be  laniform  in  the 
various  States,  no  more  can  be  done  than  fix  the  rights  of  holders 
in  due  course.  On  the  question  whether  only  such  equities  may 
be  asserted  as  attach  to  the  bill,  or  whether  equities  arising  out 
of  collateral  matters  may  also  be  asserted,  the  decisions  are  conflict- 
ing. In  England  it  was  decided  in  Burroughs  v.  Moss,  10 
Barn  &  Cress.  558,  that  the  indorsee  of  an  overdue  bill  is  liable 
to  such  equities  only  as  attach  on  the  bill  or  note  itself,  and  not  to 
claims  arising  out  of  collateral  matters,  such  as  a  general  set-off  is. 
This  is  a  leading  case,  and  has  since  been  uniformly  followed  in 
that  country.  Stein  v.  Yglesias,  1  Crom.  Mees.  &  Ros.  565; 
Whitehead  v.  Walker,  10  Mees.  &  Welsh.  69G.  See  also  Hughes  v. 
Large,  2  Pa.  St.  103;  Long  v.  Rhawn,  75  Pa.  St.  128;  Young  v. 
Shriner,  80  Pa.  St.  463 ;  Davis  v.  Miller,  14  Gratt.  1 ;  Kilcrease  v. 
White,  6  Fla.  45;  Cumberland  Bank  v.  Llaun.,  3  Harrison,  223; 
Chandler  v.  Drew,  6  N.  H.  469;  Robertson  v.  Breedlone,  7  Porter, 
541;  Tuscumbia,  Etc.,  R.  R.  Co.  et  at.  v.  Rhodes,  8  Ala.  206-224; 
Robinson  v.  Lymon,  10  Conn.  31;  Steadman  v.  Jilman,  Id.,  56; 
Adair  v.  Lenox,  15  Oregon,  489.  A  person  to  whom  the  instrument 
is  transferred  as  a  gift  takes  it  subject  to  all  equities  then  existing 
between  the  original  parties,  but  not  subject  to  those  which  arise 
thereafter.  First  Nat.  Bank  of  Champlain  v.  Wood,  128  N.  Y.  35 ; 
Baxter  v.  Little,  6  Met.  7. 

(h)  Whenever  negotiable  paper  has  passed  into  the  hands  of  a 
party  unaffected  by  previous  infirmities  its  character  as  an  available 
security  is  established,  and  its  holder  can  transfer  it  to  others  with 
the  like  immunity.  Cover  v.  Myers,  75  Md.  406.  The  principle 
is,  that  the  promise  being  good  to  the  prior  indorsee  or  holder,  free 
from  objection  on  the  ground  of  fraudulent  or  illegal  considera- 
tion, he  has  the  power  of  transferring  it  to  others,  with  the  same 
immunity,  as  an  incident  to  the  legal  right  which  he  had  acquired 
in  the  instrument.  Kinney  v.  Kruse,  28  Wis.  183,  190-191.  See 
also  Boyd  v.  McCann,  10  Md.  118.  Thus,  if  A  gives  to  B  his  note, 
and  C  becomes  the  holder  thereof  in  due  course,  any  subsequent 
holder  could  stand  on  C's  title  and  enforce  the  note  against  A, 
though  before  taking  tlie  same  he  had  notice  of  a  defense  which  A 


RIGHTS    OF    THE    HOLDER.  59 

had  to  the  note  as  against  B.  But  if,  in  the  ease  supposed,  the  note 
should  be  indorsed  by  C  to  D,  and  by  the  latter  to  E,  and  by  him  to 
F,  under  circumstances  which  would  give  D  a  defense  as  a  party 
thereto,  then  if  F  had  notice  of  the  equities  of  both  A  and  D  he 
could  enforce  the  note  against  A,  but  not  against  D.  In  the  Wis- 
consin Act  the  word  "  duress"  is  inserted  after  the  word  "  fraud"  in 
the  second  sentence,  and  "  suih  holder"  is  substituted  for  "the 
latter." 

§59,  Who  deemed  holder  in  due  course. — Every 
holder  is  deemed  prima  fiicic  to  l)e  a  liuklcr  in  due  course 
(a)  ;  but  when  it  is  shown  that  the  title  of  any  person  who 
has  negotiated  the  instrument  was  defective,  the  burden 
is  on  the  holder  to  prove  that  he  or  some  person  ttnder  whom 
he  claims  acqtiired  the  title  as  a  holder  in  due  course  (b). 
But  the  last-mentioned  rule  does  not  apply  in  favor  of  a 
party  who  became  bound  on  the  instrument  prior  to  the 
acquisition  of  such  defective  title  (c). 

(a)  The  presumption  is  that  the  indorsee  of  negotiable  paper 
received  it  bona  fide  and  for  value.  Gray's  Admr.  v.  Bank  of  Ken- 
tucky, 29  Pa.  St.  365 ;  Wilson  v.  Lazier,  11  Graft.  477. 

(h)  The  holder  may  make  out  his  title  by  presumption  until 
it  is  impeached  by  evidence  showing  the  paper  had  a  fraudulent 
or  illegal  inception.  When  this  is  done  he  can  no  longer  rest  upon 
presumption,  but  it  is  incumbent  upon  him  to  show  the  circum- 
stances under  which  it  came  into  his  possession,  and  that  he  has 
acted  in  good  faith.  Canajoharie  National  Bank  v.  Diefendorf, 
123  N.  Y.  191;  Joy  v.  Diefendorf,  130  N.  Y.  6;  Jordan  v.  Grover, 
99  Cal.  194;  Market  and  Fulton  Nat.  Bank  v.  Sargent,  85  Me.  349; 
Haines  v.  ]\[crrill,  56  N.  J.  Law,  312;  Sullivan  v.  Langloy,  120  Mass. 
437;  Merchants'  National  Bank  v.  Haverhill  Iron  Works,  159  Mass. 
158;  Conant  v.  Johnston,  165  Mass.  450,  452;  National  Revere 
Bank  V.  Morse,  163  Mass.  381,  385;  Williams  v.  Huntington,  63 
Md.  590;  Griffith  v.  Shipley,  74  Md.  591;  Ellicott  v.  Martin.  (;  :\rd. 
509;  Hutchinson  v.  Boggs  &  Kirk,  28  Pa.  St.  294;  Wilson  v.  Lazier, 
11  Gratt.  477;  Vathir  v.  Zane,  6  Gratt.  246.  And  where  the  plain- 
tiff seeks  to  establish  this  by  his  own  testimony,  the  credibility  of 
such  testimony,  though  it  is  luulisputed,  is  for  the  jury.  Joy  v. 
Diefendorf,  supra.  Wliere  negotiable  securities  have  been  stolen 
and  negotiat<^d,  the  burden  is  upon  the  holder  to  show  that  he  is 


6o  THE     NEGOTIABLE    INSTRUMENTS    LAW. 

himself  a  holtU'i-  in  (hie  course,  or  that  he  claims  under  such  a 
holder;  and  there  is  no  presumption  that  the  thief  negotiated  the 
securities  before  they  became  due.  Northampton  Nat.  Bank  v. 
Kidder,  106  N.  Y.  221;  Hinckley  v.  Merchants'  Nat.  Bank,  131 
Mass.  147.  That  the  payee  is  described  as  "  trustee"  does  not  let  in 
defenses  against  a  bona  fide  holder  for  value.  Bank  v.  Looney, 
99  Tenn.  278.  As  to  when  the  question  of  good  faith  is  for  the 
jury,  see  M.  Groh's  Son's  Co.  v.  Schneider,  34  Misc.  (N.  Y.)  195 
(a  case  arising  under  the  statute). 

(c)  The  last  sentence  is  necessary  to  qualify  the  general  state- 
ment. If  A  issues  his  note  to  B,  and  C  gets  possession  of  it  and 
fraudulently  negotiates  it  to  D,  the  fraud  of  C  in  nowise  affects  A, 
and  is  no  defense  to  him  when  sued  on  the  instrument  by  D.  Thus, 
it  has  been  held  that  the  fact  that  one  who  held  possession  of  a  note 
for  the  payee  put  it  in  circulation  in  fraud  of  his  rights  is  no  de- 
fense in  a  suit  by  the  holder  against  the  maker;  nor  does  it  change 
the  burden  of  proof,  so  as  to  require  the  plaintiff  to  show  in  the 
first  instance  that  he  is  a  bona  fide  holder  for  value.  Kinney  v. 
Kruse,  28  Wis.  183. 

ARTICLE  v.* 

Liabilities  of  Parties. 

Section  6o.  Lial)ility  of  maker. 

6i.  Lialjility  of  drawer. 

62.  Liability  of  acceptor. 

63.  Wlicn  person  deemed  indorser. 

64.  Liability  of  irregular  indorser. 

65.  Warranty;   where  negotiation   by   delivery,    et 

cetera. 

66.  Liability  of  general  indorsers. 

6/.  Liability   of   indorser   where   paper   negotiable 
bv  delivery. 

68.  Order  in  which  indorsers  are  liable. 

69.  Liability  of  agent  or  broker. 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows :  Colorado.  Connecticut,  District  of 
Columbia,  Florida.  Massachusetts,  North  Carolina,  North  Dakota,  Ore- 
gon, Tennessee,  Utah,  Virginia  and  Washington,  60-69;  New  York,  i lo- 
ng; Maryland,  79-88;  Rhode  Island,  68-77;  Wisconsin,  1677-1677-9. 


LIABILITIES    OF    PARTIES.  6 1 

§  60.  Liability  of  maker. — The  maker  of  a  negotiable 
instrument  l)y  making  it  engages  that  he  will  pay  it  accord- 
ing to  its  tenor  (a)  ;  and  admits  the  existence  of  the  payee 
and  his  then  capacity  to  indorse  (b). 

(a)  The  fact  that  the  huldcT  had  other  cohateral  securities  for 
the  same  debt  more  than  sufficient  to  cover  it,  from  which,  however, 
the  debt  had  not  been  reahzed,  is  not  a  ground  of  defense  on  the 
part  of  the  maker.     Lord  v.  Ocean  Bank,  20  Pa.  St.  384. 

(b)  If  the  payee  is  a  fictitious  or  non-existina:  person  the  instru- 
ment is  payable  to  bearer.  Section  9.  Where  the  name  of  the 
payee  is  a  trade  or  assumed  name,  and  the  instrument  is  issued  for 
value,  the  maker  is  estopped  from  setting  up  that  the  instrument 
is  payable  to  a  fictitious  payee,  if  by  such  averment  the  instrument 
would  be  defeated.  Jones  v.  Home  Furnishing  Co.,  9  App.  Div. 
(N.  y.)  103. 

§  61.  Liability  of  drawer. — The  drawer  by  drawing 
this*  instrument  admits  the  existence  of  the  payee  and  his 
then  capacity  to  indorse;  and  engages  that  on  due  present- 
ment the  instrument  will  be  accepted  or  paid,  or  both, 
according  to  its  tenor,  and  that  if  it  be  dishonored  and  the 
necessary  proceedings  on  dishonor  be  duly  taken,  he  will 
pay  the  amount  thereof  to  the  holder,  or  to  any  subsequent 
(a)  indorser  who  may  be  compelled  to  pay  it.  But  the 
drawer  mav  insert  in  the  instrument  an  express  stipulation 
nee-ativinq:  or  limiting  his  own  lialjilitv  to  the  holder. 

(a)  In  the  Colorado  Act  the  word  "  subsequent"  is  omitted. 

g  62.  Liability  of  acceptor. — The  acceptor  by  accept- 
ing the  instrument  engages  that  he  will  pay  it  according  to 
the  tenor  of  his  acceptance  (a)  ;  and  admits  : 

I.  The  existence  of  the  drawer,  the  genuineness  of  his 
signature  (b),  and  his  capacity  (c)  and  auth<irity  (d)  to 
draw  the  instrument ;  and 

*  Error  in  engrossing.  The  word  in  the  Commissioners'  draft  is 
"  the."    This  mistake  occurs  only  in  the  Pennsylvania  statute. 


62  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

2.  The  existence  of  the  payee  and  his  then  capacity  to 
indorse  (t*). 

(a)  The  discounting  of  a  bill  by  the  drawee  who  has  not  accepted 
it  is  neither  payment  nor  a  promise  to  pay  according  to  its  tenor 
and  effect,  but  puts  him  in  the  position  of  an  indorsee  for  value, 
with  right  of  action  against  drawer  and  indorser.  Swope  v.  Ross, 
40  Pa.  St.  186. 

(b)  National  Park  Bank  v.  Ninth  National  Bank,  46  N.  Y.  77; 
Marine  National  Bank  v.  National  City  Bank,  59  N.  Y.  67;  Bank 
of  St.  Albans  v.  Farmers'  and  Mechanics'  Bank,  10  Vt.  141;  Bank 
of  U.  S.  V.  Bank  of  Georgia,  10  Wheat.  333.  In  Pennsylvania  this 
matter  was  formerly  regulated  by  the  statute  of  1849.  The  effect 
of  that  statute  and  the  cases  upon  the  subject  was  that  the  mere 
acceptance  or  payment  of  forged  paper  was  no  longer  of  itself  a  bar 
to  the  recovery  of  the  money  by  the  party  paying,  nor  was  such 
party  absolutely  bound  to  discover  and  give  notice  of  the  forgery 
on  the  very  day  of  payment.  All  that  he  need  do  in  any  case  was 
to  give  ample  notice  promptly  according  to  the  circumstances  and 
the  usage  of  the  business,  and  unless  the  position  of  the  party 
receiving  the  money  had  been  altered  for  the  worse  in  the  meantime, 
the  date  of  notice  was  not  material.  Iron  City  Nat.  Bank  v.  Fort 
Pitt  Nat.  Bank,  159  Pa.  St.  46,  52.  As  to  other  cases  on  this  sub- 
ject see  People's  Bank  v.  Franklin  Bank,  88  Tenn.  299 ;  First  Nat. 
Bank  of  Danvers  v.  First  Nat.  Bank  of  Salem,  151  Mass.  280; 
Nat.  Bank  of  North  America  v.  Bangs,  106  Mass.  441;  Ellis  v. 
Insurance  Company,  4  Ohio  St.  628 ;  First  Nat.  Bank  v.  Bicker,  71 
111.  439;  Rouvant  v.  San  Antonio  Nat.  Bank,  63  Tex.  610;  Deposit 
Bank  of  Georgetown  v.  Fayette  Nat.  Bank,  90  Ky.  10.  Accept- 
ance admits  the  signature  of  the  drawer,  but  is  no  proof  or  admis- 
sion of  the  indorsement  by  the  payee,  whether  the  bill  be  payable 
to  the  drawer's  own  order  or  that  of  another  person.  Williams  v. 
Drexel,  14  Md.  566.  And  the  drawee  is  not  presumed  to  know  the 
handwriting  in  the  body  of  the  instrument.  Continental  Nat.  Bank 
V.  Tradesman's  Bank,  36  App.  Div.  112;  Gunston  v.  Heat  and 
Power  Co.  181  Pa.  St.  327. 

(c)  Thus,  if  the  bill  is  drawn  by  a  corporation,  he  cannot  set 
up  as  a  defense  that  it  was  without  legal  capacity  to  draw  the  bill. 
Halifax  v.  Lyle,  3  Welsby,  H.  &  G.  446.  So,  if  the  bill  is  drawn 
by  an  infant,  Jones  v.  Darch,  4  Price,  300 ;  Taylor  v.  Croker,  4  Esp. 
187;  or  a  married  woman,  Cowton  v.  Wickersham,  54  Pa.  St.  302. 

(d)  The  delivery  of  a  bill  or  check  by  one  person  to  another  for 


LIABILITIES    OF    PARTIES.  63 

value  implies  a  representation  on  the  part  of  the  drawer  that  the 
drawee  is  in  funds  for  its  payment,  and  the  suhsequeiit  acceptance 
of  such  check  or  hill  constitutes  an  admission  of  the  truth  of  the 
representation,  which  the  drawer  is  not  allowed  to  retract.  By  such 
acceptance  the  drawee  admits  the  trutli  of  the  representation,  and 
having  obtained  a  suspension  of  the  holder's  remedies  against  the 
drawer,  and  an  extension  of  credit  by  his  admission,  is  not  after- 
ward at  liberty  to  controvert  the  fact  as  against  a  hoiia  fide  holder 
for  value  of  the  bill.  Ileuertematte  v.  Morris,  101  N.  Y.  63,  YO. 
If  the  acceptance  be  for  the  drawer's  accommodation,  the  acceijtor 
does  not  thereby  become  entitled  to  sue  the  drawer  upon  the  bill ; 
but  when  he  has  paid  the  bill,  and  not  before,  he  may  recover  back 
the  amount  from  the  drawer  in  an  action  for  money  had  and  re- 
ceived. Christian  v.  Keen,  80  Va.  3G9,  377.  See  also  Whitwell  v. 
Brigham,  19  Pick.  117 ;  Henderson  v.  Thornton,  37  Miss,  448 ;  Suy- 
dam  V.  Combs,  3  Green  (N.  J.),  133. 

(e)  Thus,  he  would  not  be  permitted  to  show  that  the  payee 
at  the  time  of  the  acceptance  was  a  lunatic.  Smith  v.  ]\rarsack,  6 
C.  B.  48G. 

§  63.  When  person  deemed  indorser.  —  A  person 
placing  his  signature  upon  an  instrument  otherwise  than  as 
maker,  drawer  or  acceptor  is  deemed  to  be  an  indorser,  unless 
lie  clearly  indicates  by  appropriate  words  his  intention  to  be 
found*  in  some  other  capacity  (a). 

(a)  See  section  17,  subdivision  G,  and  note.  There  is  nothing 
in  either  section  to  preclude  a  party  from  assuming  liability  such 
as  guarantor,  etc.  Thus,  if  he  were  to  place  above  his  signature 
the  words,  "  I  guarantee  the  payment  of  the  within  note,"  he  would 
not  be  deemed  an  indorser  but  a  guarantor. 

J5  64.  Liability  of  irregular  indorser. — Wliere  a  per- 
son, not  otlierwise  a  party  to  an  instrument,  places  thereon 
his  signature  in  blank  before  delivery,  he  is  lialile  as  indorser 
in  accordance  with  the  following  rules  : 

1.  If  the  instrument  is  payal^le  to  the  order  of  a  third 
person,  lie  is  liable  to  the  payee  and  to  all  subsequent  parties. 

2.  If  the  instrument  is  payable  to  the  order  of  the  maker 
'^  Error  in  engrossing  for  "  bound." 


64  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

or  drawer,  or  is  payable  to  bearer,  he  is  liable  to  all  parties 
subsequent  to  the  maker  or  drawer. 

3.   If  he  signs  for  the  accommodation  uf  the  payee  he  is 
liable  to  all  parties  subsequent  to  the  payee. 

This  section  is  intended  to  cover  irregular  indorsements.  On 
this  subject  the  decisions  are  very  conflicting.  In  some  jurisdic- 
tions a  person  placing  his  signature  on  the  back  of  a  note  before 
the  payee  has  indorsed  was  deemed  a  joint  maker.  Good  v.  Martin, 
95  U.  S.  93;  National  Exchange  Bank  v.  Cumberland  Lumber  Co., 
100  Tenn.  479 ;  Logan  v.  Ogden,  101  Tenn.  392 ;  Bank  of  Jamaica  v. 
Jefferson,  92  Tenn.  537;  Melton  v.  Brown,  25  Fla.  461;  Schroeder 
V.  Turner,  68  Md.  506.  Li  other  jurisdictions  he  was  regarded  as 
a  guarantor.  In  still  others  he  was  considered  an  indorser.  And 
those  courts  which  held  him  to  be  an  indorser  differed  as  to  whether 
he  was  a  first  or  second  indorser.  The  rule  adopted  in  the  statute 
is  embodied  in  part  in  section  3117  of  the  Civil  Code  of 
California,  which  reads:  "One  who  indorses  a  negotiable  in- 
strument before  it  is  delivered  to  the  payee  is  liable  to  the  payee 
thereon,  as  an  indorser."  The  California  rule  was  adopted  because 
,  it  is  conducive  to  certainty,  and  because  it  appears  to  accord  moi'e 
nearly  with  what  must  have  been  the  intention  of  the  parties. 
When  a  plain  man  puts  his  signature  on  the  back  of  a  negotiable 
instrument  he  ordinarily  understands  that  he  is  becoming  liable 
as  an  indorser;  and  if  he  puts  it  there  before  the  instrument  is 
delivered,  he  usually  does  so  for  the  purpose  of  giving  the  maker 
or  drawer  credit  with  the  payee  or  other  person  to  whom  it  is  nego- 
tiated. The  following  observation  in  Connors  v.  Taylor  (13  Wis. 
224,  229)  seems  to  embody  much  practical  good  sense:  "  Obviously, 
a  person  indorsing  a  note  before  delivery  thereof  to  the  payee 
intends  rendering  himself  liable  to  the  payee  in  some  character  and 
upon  some  ground.  lie  must  intend  and  design  to  secure  its  pay- 
ment and  give  credit  to  the  paper  by  placing  his  name  upon  it,  even 
ill  the  hands  of  the  payee."  In  many  of  the  cases  the  reasoning  is 
highly  technical,  and  the  decisions  are  based  upon  considerations 
which,  in  all  probability,  never  entered  the  heads  of  the  parties 
themselves.  The  California  Code  makes  no  provision  for  a  case 
where  the  instrument  is  drawn  to  the  order  of  the  maker  or  drawer. 
This  is  covered  by  subdivision  2,  above.  Subdivision  3  was  added 
to  provide  for  a  case  where,  the  payee  being  unable  to  enforce 
payment,  there  might  be  a  question  whether  the  indorser  would  be 
liable  to  a  person  claiming  under  the  payee.     In  New  York  prior 


LIABTTJTTKS    OF    PARTIES.  05 

to  the  statute  a  person  indorsiiij^  in  blank  before  delivery  to  the 
payee  was  prima  facie  deemed  to  be  a  second  indorser,  and  hence 
not  liable  to  the  payee,  who  was  supposed  to  be  the  first  indorser. 
Bacon  I'.  Burnham,  37  ?s^.  Y.  G14;  Phelps  v.  Viseher,  50  X.  Y.  60. 
The  same  rule  prevailed  in  Pennsylvania.  Eilbert  v.  Finkbeiner,  68 
Pa.  St.  243;  Central  Nat.  Bank  v.  Dreydoppel,  134  Pa.  St.  499. 
And  in  Oregon.  Deering  v.  Creighton,  19  Oregon,  118;  Cogswell 
V.  Haj'den,  5  Oregon,  22.  But  as  the  paper  itself  furnished  only 
prima  facie  evidence  of  this  intention,  it  was  competent  to  rebut 
the  presumption  by  parol  proof  that  the  indorsernent  was  made  to 
give  the  maker  credit  with  the  payee.  Coulter  v.  Eichmond,  59 
N.  Y.  478.  As  the  statute  fixes  the  liability  in  such  cases  abso- 
lutely, parol  evidence  would  now  seem  inadmissible.  This  was  held 
to  be  the  effect  of  the  former  statute  of  Connecticut.  (Act  of  1884, 
Gen.  Statutes,  §  1860)  which  provided  that  "  Blank  indorsements  of 
a  negotiable  or  non-negotiable  note,  by  a  person  who  is  neither  its 
maker  nor  its  payee,  before  or  'after  its  indorsement  by  the  payee, 
shall  import  the  contract  of  an  ordinary  indorsement  of  negotiable 
paper,  as  between  such  indorser  and  the  payee  or  subsequent  holders 
of  such  paper."  Spencer  v.  Allerton,  60  Conn.  410.  But  in  Kohn 
V.  Consolidated  Butter  &  Egg  Co.,  30  Misc.  (N.  Y.)  725,  it  was 
said  by  McAdam,  J.  obiter:  "The  true  intention  of  indorsers,  as 
between  themselves,  can  always  be  shown  by  oral  evidence.  To  go 
further  and  decide  that  the  statute  intended  to  create  an  incontest- 
able liability  against  irregular  indorsers  would  be  to  impute  to  the 
legislative  wisdom  a  desigTi  repugnant  to  every  notion  of  judicial 
procedure,  especially  in  a  provision  enacted  in  the  interest  of  law 
reform, 


j> 


Illustrations. 

Xote  made  b.y  A  payable  to  order  of  B,  indorsed  by  C,  and  after- 
ward delivered  to  B.     C  is  liable  as  indorser  to  B. 

Note  made  by  A  payable  to  order  of  himself,  indorsed  by  B, 
and  afterward  delivered  to  C.     B  is  liable  as  indorser  to  C. 

Note  made  by  A  to  order  of  B,  indorsed  by  C  before  B,  but 
for  accommodation  of  B,  and  discounted  by  Bank  of  X.  C  is 
liable  as  indorser  to  Bank  of  X  and  not  to  B. 

§  65.  Warranty  where  negotiation  by  delivery,  et 
cetera. —  Every  person  negotiating  an  instrument  liy  deliv- 
ery or  by  a  qualified  indorsement,  warrants  (a)  : 


66  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

1.  That  the  instrument  is  genuine  (b)  and  in  all  respects 
what  it  purports  to  be  (c)  ; 

2.  That  he  has  a  good  title  to  it  (d)  ; 

3.  That  all  prior  parties  had  capacity  to  contract  (c)  ; 

4.  That  he  has  no  knowledge  of  any  fact  which  would 
impair  the  validity  of  the  instrument  or  render  it  value- 
less (/). 

But  when  the  negotiation  is  by  delivery  only,  the  war- 
rantv  extends  in  favor  of  no  holder  other  than  the  immediate- 
transferee.     The  provisions  of  subdivision  three  of  this  sec- 
tion do  not  apply  to  persons  negotiating  public  or  corpora- 
tion securities,  other  than  bills  and  notes  ( g). 

(a)  This,  of  course,  refers  only  to  the  implied  warranty.  An 
express  warranty  may  be  so  framed  as  to  exclude  all  other  war- 
ranties which  would  otherwise  be  implied  by  the  law.  Giffert  v. 
West,  37  Wis.  115. 

(h)  Littauer  v.  Goldman,  72  K  Y.  50G;  Whitney  v.  National 
Bank  of  Potsdam,  45  N.  Y.  303;  Ilerrick  v.  Whitney,  15  Johns. 
240;  Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287;  Coolidge  v.  Brig- 
ham,  5  Mete.  68.  But  if  at  the  time  of  the  transfer  he  expressly 
decline  to  warrant  the  genuineness  of  the  instrument  no  such  war- 
ranty will  be  implied.  Bell  v.  Dagg,  60  N.  Y.  528.  But  a  general 
refusal  to  guarantee  will  not  of  itself  exclude  the  implied  warranty 
of  genuineness.  (Id.)  The  sale  and  transfer,  for  a  full  and  fair 
price,  of  a  note  past  due,  indorsed  in  blank  by  the  person  to  whose 
order  it  is  payable,  implies  a  warranty  by  the  vendor  that  such 
indorsement  is  valid.  Giffert  v.  West,  37  Wis.  115.  The  indorse- 
ment of  a  promissory  note  is  a  guaranty  by  the  indorser  to  the  in- 
dorsee that  the  prior  indorsements  on  the  note  and  the  signature 
of  the  payor  are  genuine,  and  made  by  parties  authorized  to  pass 
the  title.  MeConeghy  v.  Kirk,  68  Pa.  St.  200;  Condon  v.  Pearce, 
43  Md.  83;  Lambert  v.  Pack,  1  Salk.  127;  Critchlow  v.  Parry,  2 
Camp.  ]82;  Prescott  Bank  v.  Caverly,  7  Gray,  216,  220.  See  next 
section. 

(c)  By  the  rule  of  the  common  law,  both  in  England  and  in  the 
United  States,  the  doctrine  is  universally  recognized  that  where 
commercial  paper  is  sold  without  indorsement  or  without  express 
assumption  of  liability  on  the  paper  itself,  the  contract  of  sale 
and  the  obligations  which  arise  from  it,  as  between  vendor  and 


1. 1  ABILITIES    OF    PARTIES.  OJ 

vendee,  are  governed  by  the  connnon  law  relating'  to  the  sale  of 
goods  and  eluiltelb;  and  tlir  rule  is  that  in  such  a  sale  the  obligation 
of  the  vendor  is  not  restricted  to  the  mere  question  of  forgery  vel 
non,  but  depends  upon  whether  he  has  delivered  that  which  he  con- 
tracted to  sell,  this  rule  being  designated  in  England  as  a  condition 
of  the  principal  coiitract,  as  to  the  essence  and  substance  of  the 
thing  to  be  sold,  and  in  this  country  being  generally  termed  an  im- 
plied warranty  of  the  identity  of  the  thing  sold.  Meyer  v.  Rich- 
ards, 163  U.  S.  385.  In  this  case  the  decision  of  the  Court  of 
Appeals  of  New  York  in  Littauer  v.  Goldman,  72  N.  Y.  506,  is  criti- 
cised and  disapprov'ed.  See  also  Wood  c.  Sheldon,  42  N.  J.  Law, 
425.  But  there  is  no  implied  warranty  by  the  vendor  of  a  bill  that 
it  was  drawn  against  funds  or  that  it  was  not  accommodation  paper. 
People's  Bank  v.  Bogart,  81  N.  Y.  101  ;  Jn  re  Hammond,  6  De  G.  M. 
&  G.  699. 

(d)  Meriden  National  Bank  v.  Gallaudet,  120  X.  Y.  298,  303. 

(e)  Littauer  v.  Goldman,  72  N.  Y.  506,  509.  One  who  indorses 
a  promissory  note,  purporting  to  be  executed  by  a  firm,  thereby  im- 
pliedly contracts  that  the  note  was  made  by  the  firm  in  whose  name 
it  is  executed,  and  he  cannot  dispute  the  fact  in  an  action  upon  the 
indorsement.  Dalrymple  v.  Hillenbrand,  62  N.  Y.  5.  And  a  second 
indorser  cannot  dispute  the  legal  capacity  of  the  payee  to  indorse 
on  the  ground  that  she  was  a  married  woman.  Prcscott  Bank  v. 
Caverly,  7  Gray,  216,  217.  So  one  indorsing  the  note  of  a  corpora- 
tion admits  its  capacity  to  execute  the  note.  Gliddon  i'.  Chamber- 
lin,  167  Mass.  486.  But  see  Southern  Loan  Co.  v.  Morris,  2  Pa.  St. 
175. 

(f)  Thus,  ujion  the  sale  of  a  note  there  is  an  implied  warranty 
that  it  has  not  been  paid.  Daskman  v.  Ullman,  74  Wis.  474. 
Where  an  instrument  void  for  usury  is  transferred  without 
indorsement  and  without  representation  as  to  legality,  an  action 
cannot  be  sustained  against  the  vendor  without  alleging  and  proving 
scienter.  Littauer  v.  Goldman,  72  X.  Y.  506.  But  see  Wood  v. 
Sheldon,  42  X.  J.  Law,  425,  and  Meyer  v.  Richards,  163  U.  S.  385. 
And  the  same  rule  applies  in  a  case  where  the  principal  debtor  has 
become  insolvent.  Bicknall  v.  Waterman,  5  R.  1.  43;  Fenn  v. 
Harrison,  3  T.  R.  757;  Fydell  v.  Clark,  1  Esp.  447.  An  express 
warranty  that  proper  measures  have  been  taken  to  charge  the  in- 
dorser, upon  the  maker's  default,  is  not  inconsistent  with  an 
implied  warranty  that  the  instrument  was  originally  valid.  Gitfert 
V.  West,  37  Wis.  115. 

(g)  Otis  V.  Cullum,  92  F.  S.  448.     This  was  an  action  against 


68  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

the  vendor  of  municipal  bonds  payable  to  bearer,  which  were  after- 
ward declared  void  because  the  legislature  had  no  power  to  pass 
the  acts  under  which  they  were  issued.  It  was  held  that  no  recov- 
ery could  be  had  in  the  absence  of  an  express  warranty.  The  appli- 
cation of  the  rule  of  commercial  paper  in  such  cases  would  work 
great  hardship  and  much  public  inconvenience. 

§  66.  Liability  of  general  indorser. — Every  indorser 
who  indorses  without  qualification,  warrants  to  all  subse- 
quent holders  in  due  course : 

1.  The  matters  and  things  menti<:)ned  in  subdivisions  one, 
two  and  three  of  the  next  preceding  section  (a)  ;  and 

2.  That  the  instrument  is  at  the  time  of  his  indorsement 
vahd  and  subsisting  (b). 

And,  in  addition,  he  engages  that  on  due  presentment,  it 
shall  be  accepted  or  paid,  or  both,  as  the  case  may  be,  accord- 
ing to  its  tenor  (c),  and  that  if  it  be  dishonored,  and  the  nec- 
essary proceedings  on  dishonor  be  duly  taken,  he  will  pay  the 
amount  thereof  to  the  holder,  or  to  any  subsequent  indorser 
who  may  be  compelled  to  pay  it  (d). 

(a)  This  section  makes  an  important  change  in  the  law.  In  Na- 
tional Park  Bank  v.  Seaboard  National  Bank,  114  N.  Y.  28,  the 
Court  of  Appeals  of  New  York  held  that  where  a  bank,  -which  had 
acted  merely  as  a  collecting  agent,  had  paid  the  proceeds  of  a  check 
over  to  its  principal,  the  bank  making  the  payment  could  not  recover 
from  the  collecting  bank  upon  subsequently  discovering  that  the 
check  had  been  raised.  In  this  case  the  check  was  presented  by  the 
Seaboard  Bank  to  the  drawee  bank  through  the  clearing-house,  and 
hence  there  was  no  question  as  to  liability  of  the  Seaboard  Bank 
as  an  indorser  to  an  indorsee.  But  in  the  case  of  United  States  v. 
American  Exchange  National  Bank,  70  Fed.  Rep.  232,  the  United 
States  District  Court  for  the  Southern  District  of  New  York, 
proceeding  upon  principles  similar  to  those  relied  upon  in  the 
New  York  case,  held  that  the  indorsement  of  a  bank  to  which 
paper  has  been  indorsed  for  collection  does  not  import  a  guaranty 
of  the  genuineness  of  all  prior  indorsements,  but  only  of  the  agent's 
relation  to  the  principal  as  stated  upon  the  face  of  the  paper,  and 
that  in  such  case  the  collecting  bank  was  not  liable  after  it  had 
paid  the  proceeds  to  its  principal,  though  a  prior  indorsement  was 


LIABILITIES    OF    PARTIES.  69 

a  forgery.  But  the  statute  applies  to  all  indorsers  who  indorse 
without  qualification;  and  no  exception  is  made  of  indorsers  to 
whom  the  instrument  has  been  indorsed  restrictivelj'.  Hence  a 
bank  indorsing  pai)er  forwarded  for  collection  is  liable  in  all  re- 
spects as  an  indorser,  though  the  prior  indorsement  was  "  for  col- 
lection" or  "  for  deposit,"  or  otherwise  restrictive. 

(h)  Thus,  whether  a  promissory  note  made  on  the  Lord's  Day 
can  be  enforced  by  a  payee  against  the  maker  is  immaterial  in  a 
suit  by  the  indorsee  against  the  indorser,  as  the  latter  always 
warrants  the  existence  and  legality  of  the  contract  which  he  under- 
takes to  assign.     Prescott  National  Bank  v.  Butler,  157  Mass.  548. 

(c)  x\n  indorser  of  a  promissory  note  which  contains  a  stipula- 
tion for  a  reasonable  attorney's  fee  in  case  of  suit  is  as  much  liable 
for  the  attorney's  fee  as  for  the  principal  of  the  note.  Benn  v. 
Ivutzschan,  24  Ore.  28.     See  sec.  21. 

(d)  The  indorser  has  no  right  to  require  the  holder  to  sue  the 
maker  or  drawer,  under  the  penalty  of  the  indorser  being  discharged 
in  case  of  non-compliance;  and  it  is  his  duty  to  take  up  the  note. 
Day  V.  Ridgway,  17  Pa.  St.  303.  Nor  is  the  holder  bound  to  antici- 
pate and  make  provision  for  a  breach  of  the  contract.  Bartlett  v. 
Isbell,  31  Conn.  297.  Parol  evidence  of  an  agreement  which  would 
vary  the  legal  liability  of  the  indorser  under  his  indorsement  is 
inadmissible.  Smith  v.  Caro,  9  Ore.  278;  Eaton  v.  McMahon,  42 
Wis.  4S4.  And  while  there  has  been  some  conflict  in  the  decisions, 
the  sounder  doctrine  puts  all  indorsements  on  substantially  the 
same  footing.  The  contract  by  a  blank  indorsement  is  fixed  by  law, 
and  should  not  be  rendered  uncertain  by  parol,  any  more  than  when 
written  out  in  full.  Charles  v.  Denis,  42  Wis.  56,  58.  This  is  the 
rule  adopted  in  the  statute,  which  makes  the  indorser's  obligation 
absolute. 


§  67.  Liability  of  indorser  where  paper  negotiable 
by  delivery. — W'liere  a  person  places  his  indorsement  on 
an  instrument  negotiable  by  dehvery  he  incurs  all  the  liabili- 
ties of  an  indorser  (a). 

(a)  Cover  v.  Myers,  75  Md.  406.  The  holder  of  paper  payable  to 
bearer  and  indorsed  may  sue  upon  it  as  bearer  or  indorsee  at  his 
election.  Daniel  on  Negotiable  Instruments,  section  663a;  3  Kent's 
Comm.  44.  In  some  of  the  States  a  note  payable  to  a  designated 
payee  or  bearer  cannot  be  negotiated  except  by  the  indorsement 


70  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

of  such  person.     See  Garvin  v.  Wiswell,  83  111.  218;  Blackman  v. 
Lehman,  63  Ala.  547. 

vj  68.  Order  in  which  indorsers  are  liable. — As  re- 
spects one  another,  indorsers  are  liable  f^rima  facie  in  the 
order  in  which  they  indorse  (fl)  ;  Imt  evidence  is  admissible 
to  sho\\-  that  is*  between  or  among  themselves  they  have 
agreed  otherwise  (b).  Joint  payees  or  joint  indorsees  who 
indorse  are  deemed  to  indorse  jointly  and  severally  (c). 

(a)  This  rule  is  general,  and  applies  to  accommodation  indorsers 
as  well  as  to  others.  Such  indorsements  import,  not  a  joint  but  a 
several  and  successive,  liability,  each  indorser  being  responsible  to 
all  who  succeed  him.  Easterly  v.  Barber,  66  N.  Y.  433 ;  Kelly  v. 
Burroughs,  102  X.  Y.  93 ;  Egbert  v.  Hanson,  34  Misc.  597 ;  McCarty 
V.  Roots,  21  How.  (U.  S.)  432;  Bank  of  U.  S.  v.  Beirne,  1  Gratt. 
234;  Hague  v.  Davis,  8  Gratt.  4;  Shaw  v.  Knox,  98  Mass.  214;  Mc- 
Donald V.  Magruder,  3  Peters,  470 ;  Wood  v.  Repold,  3  Harris  &  J., 
125;  Clapp  i'.  Rice,  13  Gray,  403;  Howe  v.  Merrill,  15  Gush.  88; 
Talcott  v.,  Cogswell,  3  Day,  512 ;  Kirschner  v.  Conklin,  40  Conn. 
77,  81 ;  Wolf  V.  Hostetter,  182  Pa.  St.  292 ;  Russ  v.  Sadler,  197  Pa. 
St.  51. 

(6)  Morrison  Lumber  Co.  v.  Lookout  Mt.  Hotel  Co.,  92  Tenn.  6; 
Bank  of  Jamaica  v.  Jefferson,  92  Tenn.  537 ;  Reinhart  v.  Schall,  69 
Md.  352;  Hale  v.  Danforth,  46  Wis.  554;  Witherow  v.  Slaybach. 
158  X.  Y.  649;  Patch  v.  Washburn,  82  Mass.  82;  Breneman  v. 
Furniss,  90  Pa.  St.  186.  Evidence  to  show  an  agreement 
for  a  joint  liability:  Easterly  v.  Barber,  66  N.  Y.  433;  Phillips 
V.  Preston,  5  How.  (U.  S.)  278;  Edelen  v.  White,  6  Bush, 
408;  contra:  Johnson  v.  Ramsay,  43  N.  J.  Law,  279.  Evidence  to 
show  contract  that  one  was  to  be  prior  indorser:  Slack  v.  Kirk,  67 
Pa.  St.  380;  Reinhart  v.  Schall,  69  Md.  352;  Slagel  v.  Rust,  4  Gratt. 
274.  The  agreement  may  be  evidenced  by  the  circumstances  of 
the  case.  Macdonald  v.  Whitfield,  L.  R.  8  App.  Cas.  733;  Hagerthy 
V.  Phillips,  83  Me.  336;  Clapp  v.  Rice,  13  Gray,  403.  For  a  case 
where  relief  given  in  equity  where  order  of  indorsers  changed  on 
renewal  of  note  without  consent  of  one,  see  Slagel  v.  Rusts'  Admr., 
6  Gratt.  274. 

(c)  This  provision  changes  the  law.  Prior  to  the  statute  joint 
payees  who  indorsed  were  liable  only  jointly.  Lane  v.  Stacy,  8 
Allen,  41 ;  Daniel  on  Negotiable  Instruments,  section  704. 

*  F.rror  in  engrossing  for  "  as." 


PRESENTMENT    FOR     I'AVMKXT.  7 1 

§  69.  Liability  of  agent  or  broker.— Where  a  1)rokcr 
or  other  agciu  nci;"oliates  an  in>lrinnent  without  in- 
dorsement, he  incurs  all  the  liabilities  prescribed  by  section 
sixty-five  of  this  act,  unless  he  discloses  the  name  of  the* 
principal,  and  the  fact  that  he  is  actin.c^  only  as  agent  (a). 

(a)  Meriden  National  Bank  v.  Gallaudet,  120  N.  Y.  289;  Cabot 
Bank  v.  Morton,  4  Gray,  156 ;  Worthington  v.  Cowles,  12  Mass.  30. 


ARTICLE  VL-f 
Prese^'tment  for  Payment. 

Section  70.  EiTfect  of  want  of  demand  on  principal  debtor. 

71.  Presentment  where  instrument  is  not  payable 

on  demand. 

72.  What  constitutes  a  sufficient  presentment. 
y^.  Place  of  presentment. 

74.  Instrument  must  be  exhibited. 

75.  Presentment  where  instrument  payable  at  bank. 
^6.  Presentment  where  princii)al  debtor  is  dead. 
yy.  Presentment  to  persons  liable  as  partners. 

yS.  Presentment  to  joint  debtors. 

79.  When  presentment  not  required  to  charge  the 

drawer. 

80.  When  presentment  not  required  to  charge  the 

indorser. 

81.  When  delay  in  making  presentment  is  excused. 

82.  When  presentment  may  be  dispensed  wdth. 


*  In  other  States  "  his"  for  "  the." 

t  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of  Co- 
lumbia, Florida.  Massachusetts.  North  Carolina.  North  Dakota,  Ore- 
gon, Tennessee,  Utah,  Virginia  and  Washington,  70-88:  New  York.  130- 
14S;  Maryland.  89-107;  Rhode  Island.  78-96:  Wisconsin,  1678-1678-18. 


'J2  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Section  83.  \M-ien  instrument  dishonored  by  non-payment. 

84.  Liability  of  person  secondarily  liable,  when  in- 

strument dishonored. 

85.  Time  of  maturity. 

86.  Time ;  how  computed. 

87.  Rule  where  instrument  payable  at  bank. 

88.  What  constitutes  payment  in  due  course. 


§  70.     Effect  of  want  of  demand  on  principal  debtor. 

— Presentment  for  payment  is  not  necessary  in  order  to 
charge  the  person  primarily  liable  on  the  instrument"'^'  (a) 
but  if  the  instrument  is,  by  its  terms,  payable  at  a  special 
place,  and  he  is  able  and  willing  to  pay  it  there  at  maturity 
ih^,  such  ability  and  willingness  are  equivalent  to  a  tender 
of  payment  upon  his  part  (c).  But  except  as  herein  other- 
wise provided,  presentment  for  payment  is  necessary  in  or- 
der to  charge  the  drawer  and  indorsers  (c?). 

(a)  Howard  v.  Boorman,  17  Wis.  459 ;  Rumball  v.  Ball,  10  Md. 
38;  Frampton  v.  Coulsou,  1  Wils.  33;  Norton  v.  Ellam,  2  M.  &  W. 
461 ;  Hills  v.  Place,  48  N.  Y.  520 ;  Bush  v.  Gilmore,  45  App.  Div. 
(N.  Y.)  89.  The  action  itself  is  a  sufficient  demand,  and  that 
though  the  instrument  be  payable  on  demand.  Tlie  rule  is  general 
and  applies  though  the  maker  has  made  the  note  for  accommodation 
and  this  is  known  to  the  holder.  Hansborough  v.  Gray,  3  Graft. 
340. 

ih)  In  New  York  the  words  ''and  has  funds  there  available  for 
that  purpose'"  were  added  by  Laws  N.  Y.  1898,  C.  336.  They  seem 
to  be  superfluous.  It  is  difficult  to  see  how  a  man  can  be  able  to  pay, 
unless  he  has  the  funds  with  which  to  make  payment.  Besides,  if 
taken  literally,  they  impose  a  condition  not  deemed  necessary  by  the 
courts.  If,  for  example,  the  "  special  place"  where  the  paper  is 
payable  is  the  office  of  the  maker  or  acceptor,  this  provision  re- 
quires that  he  have  the  funds  there,  and  it  would  not  be  enough 


*  In  the  Wisconsin  Act  all  of  the  first  sentence  after  the  words  "  pri- 
marily liable  on  the  instrument"  is  omitted. 


PRESENTMENT    FOR    PAYMENT.  "/ Ty 

that  he  have  them  in  bank.  Tlio  interpolation  is  not  only  at 
vai-ianco  with  the  decisions  on  the  subject,  but  is  contrary  to 
good  sense,  and  to  the  practice  of  the  business  world.  The 
change  was  made  upon  the  suggestion  of  the  Commissioners 
of  Statutory  Revision  without  the  knowledge  of  the  Commission- 
ers on  Uniformity  of  Laws.  It  affords  a  good  illustration  of  the 
absurdities  likely  to  result  from  legislative  "  tinkering." 

(c)  The  rule  adopted  generally  in  the  United  States  is  that  where 
a  note  is  made  payable  at  a  particular  bank  or  other  place,  or  a  bill 
of  exchange  is  drawn  or  accepted  i)ayab]e  in  like  manner,  it  is 
not  necessary  in  order  to  recover  of  the  maker  or  acceptor  to  aver 
or  prove  presentment  or  demand  of  payment  at  such  place  on  the 
day  the  instrument  became  due  or  afterward.  The  only  conse- 
quence of  a  failure  to  make  such  presentment  is  that  the  maker  or 
acceptor,  if  he  was  ready  at  the  time  and  place  to  make  the  payment, 
may  plead  the  matter  in  bar  of  damages  and  costs.  Hills  v.  Place, 
48  N.  Y.  520,  523;  Parker  v.  Stroud,  98  N.  Y.  379,  38-i;  Cox  v.  Na- 
tional Bank,  100  U.  S.  713;  Wallace  v.  McConnell,  13  Peters,  136; 
Lazier  v.  Iloran,  55  Iowa  77;  Insurance  Company  v.  Wilson,  29 
W.  Va.  543 ;  Lockwood  v.  Crawford,  18  Conn.  371 ;  Bond  v.  Storrs, 
13  Conn.  416. 

{d)  Where  a  draft  is  drawn  in  another  State,  by  one  residing 
there,  upon  a  party  residing  in  tlii.s  State,  any  legal  question  in 
reference  to  presentation  and  demand  for  payment  is  to  be  deter- 
mined by  the  laws  of  this  State.  Sylvester  v.  Crohan,  138  N.  Y. 
494;  Ilibernia  Bank  v.  Lacomb,  84  N.  Y.  367.  The  indorser  is 
entitled  to  demand  and  notice  notwithstanding  he  holds  collateral 
security.     "\Miitney  v.  Collins,  15  R.  I.  44. 

§  71.  Presentment  where  instrument  is  not  payable 
on  demand. — Where  the  instrument  is  not  payable  on  de- 
mand, presentment  must  be  made  on  the  day  it  falls  due  {a). 
Where  it  is  payable  on  demand,  presentment  must  be  made 
within  a  reasonable  time  after  its  issue  (&),  except  that  in 
the  case  of  a  bill  of  exchange,  presentment  for  payment  will 
be  suflicient  if  made  within  a  reasonable  time  after  the  last 
negotiation  thereof. 

(a")  As  to  dato  of  maturity,  see  section  85. 

(h)  Turner  v.  Iron  Chief  Mining  Co.,  74  Wis.  355;  :N[udds  v. 
Harper,  1  Md.  110.     This  changes  the  law  of  Xew  York,  which 


74  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

prior  to  the  statute  was,  that  a  promissory  note  payable  on  demand 
witli  interest  is  a  continuing  security,  on  wliicli  an  indorser  remains 
liable  until  an  actual  demand,  and  the  holder  is  not  chargeable  with 
neglect  for  omitting  to  make  such  demand  within  any  particular 
time.  Merritt  v.  Todd,  23  N.  Y.  28;  Pardee  v.  Fish,  60  N.  Y.  265; 
Herrick  v.  Wolverton,  41  N.  Y.  581 ;  Wheeler  v.  Warner,  47  N.  Y. 
519;  Crim  v.  Starkweather,  88  N.  Y.  339;  Parker  v.  Stroud,  98 
X.  Y.  379,  385;  Shutts  v.  Fingar,  100  N.  Y.  541.  The  former  rule 
was  criticised  in  some  of  the  later  cases.  In  Connecticut  prior  to 
the  statute  promissory  notes  iJayable  on  demand  were  required  to 
be  presented  within  four  months.  Connecticut  General  Statutes, 
p.  405.  A  similar  rule  exists  in  California  (Civil  Code,  sec- 
tion 3248),  and  in  Minnesota  (Minnesota  statutes  [1891],  sec- 
tion 2104.)  In  Vermont  demand  notes  are  overdue  in  sixty  days. 
Paine  v.  Central  Vermont  R.  R.  Co.,  118  U.  S.  152.  And 
this  was  formerly  the  rule  in  Massachusetts.  (Id.)  As  to 
a  note  payable  on  demand,  "  with  interest  semi-annually,"  see 
Hayes  v.  Werner,  45  Conn.  252.  One  of  the  most  difficult  ques- 
tions presented  for  the  decision  of  a  court  of  law  is,  what  shall  be 
deemed  a  reasonable  time  withiVi  which  to  demand  payment  of  the 
maker  of  a  note  payable  on  demand,  in  order  to  charge  the  indorser. 
It  depends  upon  so  many  circumstances  to  determine  what  is  a  rea- 
sonable time  in  a  particular  case,  that  one  decision  goes  but  little 
way  in  establishing  a  precedent  for  another.  Seaver  v.  Lin- 
coln, 21  Pick.  267.  As  by  section  7  an  instrument  negotiated 
when  overdue  is  payable  on  demand,  the  requirement  of  sec- 
tion 71  is  applicable  in  such  cases.  In  theory  paper  indorsed 
when  overdue  is  equivalent  to  a  bill  of  exchange  drawn  on  the 
party  primarily  liable,  payable  at  sight.  In  this  theory,  the  neces- 
sity of  demand  and  notice  is  an  essential  element :  not  notice  on  a 
given  day,  as  in  the  case  of  a  maturing  note,  possible  in  that  case, 
but  impossible  in  the  other,  for  the  day  appointed  by  the  former 
maker  and  the  new  acceptor  has  passed;  but  notice  after  the  holder 
has  had  reasonable  time  to  make  the  demand  on  the  maker,  and 
has  employed  that  time  with  diligence.  Tyler  v.  Young,  30  Pa.  St. 
143,  144;  Leidy  v.  Tammany,  9  Watts,  353;  Guild  v.  Goldsmith,  9 
Fla.  212.  Where  the  facts  are  ascertained  the  question  of  what  is  a 
reasonable  time  for  demand  of  payment  and  notice  of  dishonor  in 
the  case  of  a  note  transferred  after  it  has  become  due  is  a 
question  of  law,  depending  on  the  facts  of  each  particular  case. 
Guild  V.  Goldsmith,  9  Fla.  212.  In  the  case  of  a  negotiable  cer- 
tificate of  deposit  there  is  much  reason  for  saying  that  the  parties 


PRESENTMENT     FUR     PAYMENT.  75 

do  not  contemplate  an  immediate  demand  of  payment,  and  hence 
an  indorsee  may  not  be  held  to  the  same  degree  of  diligence  in  pre- 
senting it  tor  payment  as  tiie  law  requires  in  other  cases.  Lindsel  v. 
^IcClcllan,  is  Wis.  4sl.  As  to  corporate  bonds  and  coupons,  see 
Williainsport  (Jas  Co.  v.  Pinkerton,  !)5  Pa.  St.  G2. 

§  72.  What  constitutes  a  sufficient  presentment. — 
Presentment  for  payment,  to  be  sulticient.  nnisl  Ije  made: 

1.  Bv  the  holder,  or  by  some  person  authorized  to  receive 
payment  on  his  behalf  {a)  ; 

2.  At  a  reasonable  hour  on  a  business  day  (b)  ; 

3.  At  a  proper  place  as  herein  defined  (r)  ; 

4.  To  the  person  primarily  liable  on  the  instrument,  or  if 
he  is  absent  or  inaccessible,  to  any  person  found  at  the  place 
where  the  presentment  is  made  (d). 

(a)  The  mere  possession  of  a  negotiable  instrument  which  is 
payable  to  the  order  of  the  payee,  and  is  indorsed  by  him  in  blank, 
or  of  a  negotiable  instrument  payable  to  bearer,  is  in  itself  suffi- 
cient evidence  of  the  right  to  present  it  and  to  demand  payment 
thereof.  Weber  v.  Orton,  91  Mo.  680;  Sussex  Bank  v.  Baldwin,  2 
Harr.  (N.  J.),  487;  Shedd  v.  Brett,  1  Pick.  401.  And  payment 
to  such  person  will  always  be  valid,  unless  he  is  known  to  the 
payer  to  have  ac(|ui red  possession  wrongfully.  Daniel  on  Nego- 
tiable Instruments,  section  574.  There  is  no  need  of  a  power  of 
attorney'  or  written  instrument  to  constitute  one  an  agent  for  this 
purpose.  Shedd  c.  Brett,  1  Pick.  401.  But  the  mere  possession 
of  an  instrument  payable  to  order  and  not  indorsed  by  the  payee 
is  not  alone  sufficient  evidence  of  the  autjiority  of  an  assumed  agent 
to  receive  payment.  Doubleday  v.  Kress,  50  N.  Y.  410.  ^^Tere 
a  bank  holding  a  note  for  collection  sends  it  for  the  same  purpose 
to  the  bank  where  it  is  payable,  the  latter  is  authorized  to  demand 
payment  and  give  notice  of  dishonor.  Blakeslee  v.  Ilewett,  16  Wis. 
341. 

(b)  Except  in  cases  where  tlie  instrument  is  payable  at  a  bank, 
the  holder  has  the  whole  day  in  which  to  present  the  same,  the  only 
limitation  being  that  he  must  present  it  at  a  reasonable  hour,  and 
this  maj'  depend  upon  the  circumstances  of  the  case.  Salt  Springs 
National  Bank  v.  Burton,  58  N.  Y.  430;  Farnsworth  v.  Allen,  4 
Gray,  453;  Barclay  v.  Bailey,  2  Camp.  527:  Wilkins  v.  Jadis,  2 
B.  &  Ad.  188.     As  late  as  nine  o'clock  in  the  evening  has  been  held 


76  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

to  be  a  reasonable  hour.  Farnsworth  v.  Allen,  -i  Gray,  453.  But 
it  is  only  when  presentment  is  at  the  residence  that  the  time  is 
extended  into  the  hours  of  rest.  If  it  is  at  the  place  of  business 
it  must  be  during  those  business  hours  when  such  places  are  cus- 
tomarily open,  or,  at  least,  while  some  one  is  there  competent  to 
give  an  answer.  Waring  v.  Betts,  90  Va.  46,  53.  As  to  when 
instruments  payable  at  bank  must  be  presented,  see  section  75. 

(c)  See  next  section. 

(d)  Cromwell  v.  Hynson,  2  Camp.  596;  Phillips  v.  Astberg,  2 
Taunt.  200. 

§  73.  Place  of  presentment.  —  Presentment  for  pay- 
ment is  made  at  the  proper  place. 

1.  Where  a  place  of  payment  is  specified  in  the  instrument 
and  it  is  there  presented ; 

2.  Where  no  place  of  payment  is  specified,  but  the  address 
of  the  person  to  make  payment  is  given  in  the  instrument  and 
it  is  there  presented ; 

3.  Where  no  place  of  payment  is  specified  and  no  address 
is  given  and  the  instrument  is  presented  at  the  usual  place 
of  business  or  residence  of  the  person  to  make  payment  (a). 

4.  In  any  other*  case  if  presented  to  the  person  to  make 
payment  wherever  he  can  be  found,  or  if  presented  at  his  last 
known  place  of  business  or  residence  (b) . 

(a)  Gates  v.  Beecher,  60  N.  Y.  518,  522;  Holtz  v.  Boppe,  3Y  N.  Y. 
634.  A  presentment  at  the  maker's  usual  place  of  business  during 
business  hours,  there  being  no  one  there  to  answer,  is  a  sufficient 
demand  to  charge  the  indorser;  for  the  maker  is  bound  to  have  a 
suitable  person  there  to  answer  inquiries,  and  pay  his  notes,  if  there 
demanded.  Baumgardner  v.  Beeves,  35  Pa.  St.  250.  Wallace  v. 
Crilly,  46  Wis.  577.  And  presentment  at  such  place  is  sufficient, 
though  it  be  closed,  there  being  no  explanation  furnished  as  to  why 
it  is  closed.  Sulsbacker  v.  Bank  of  Charleston,  86  Tenn.  201.  If, 
however,  the  party  has  abandoned  his  place  of  business  at  the 
maturity  of  the  paper,  but  has  a  residence  or  other  place  of  business 
in  the  city,  which  could  be  ascertained  by  reasonable  inquiry,  a 
presentment  at  the  former  place  of  business  would  not  be  sufficient. 

*  The  word  "  other"  omitted  from  the  New  York  statute  of  1897 
through  mistake  supplied  by  Laws  N.  Y.  1898,  c.  336. 


PRESENTMENT    FOR    PAYMENT.  'J'] 

(Id.)  The  making  and  dating  of  a  promissory  note  at  a  particular 
place  is  not  equivalent  to  making  it  payable  there,  nor  does  it 
supercede  the  necessity  for  prcsentniont  and  demand  at  the  resi- 
dence or  place  of  business  of  the  maker  if  it  be  known,  or  if  by 
due  diligence  in  making  inquiry  it  could  be  ascertained.  Oxnard 
V.  Varnum,  111  Pa.  St.  193.  But  where  a  bill  of  exchange  is  ad- 
dressed to  the  drawee  at  a  particular  house,  and  the  same  is 
accepted  generally  by  him,  the  address  indicates  the  place  where 
it  is  to  be  presented  for  payment,  and  a  presentment  there  is  suffi- 
cient as  against  the  drawee  and  indorsers.  Pierce  v.  Struthers,  27 
Pa.  St.  249,  254;  Struthers  v.  Blake  et  al,  30  Pa.  St.  139.  Where 
a  note  is  dated  at  a  particular  place,  and  no  other  place  is  desig- 
nated as  that  of  its  negotiation  and  payment,  the  presumption  is 
that  the  maker  resides  where  the  note  is  dated,  and  that  he  con- 
templates payment  at  that  place.  Sasscer  v.  Stone,  10  Md. 
98;  Ricketts  v.  Pendleton,  14  Md.  320;  Xailor  v.  Bowie,  3 
Md.  251;  Clark  v.  Seabright,  135  Pa.  St.  173.  But  this  is  presump- 
tion only,  and  if  he  resides  elsewhere  within  the  State  when  the 
note  falls  due,  and  this  is  known  to  the  holder,  demand  must  be 
made  at  the  makei-'s  residence  or  place  of  business.  Sasscer  v. 
Stone,  10  Md.  98.  When  the  maker  does  not  reside,  and  has  no 
place  of  business,  in  the  State  where  the  note  is  payable,  no  demand 
upon  him  is  necessary  in  order  to  charge  the  indorser.  Ricketts  v. 
Pendleton,  14  Md.  320.  And  if  the  maker  absconds,  this  will  gen- 
erally excuse  the  demand;  but  if  he  changes  his  residence  within 
the  same  jurisdiction,  the  holder  must  endeavor  to  find  it  and  make 
demand  there.  Nailor  v.  Bowie,  3  Md.  251.  But  where  the  maker 
or  acceptor  waives  presentment  at  his  place  of  business  or  resi- 
dence, presentment  elsewhere  may  be  sufficient.  King  v.  Holmes, 
11  Pa.  St.  456;  Parker  v.  Kellogg,  158  :Mass.  90. 

(h)  If  the  maker  leaves  the  State  subsequent  to  the  making  of 
the  note,  presentment  at  his  former  place  of  business  or  residence 
is  sufficient.     Nailor  v.  Bowie,  3  Md.  251. 

§  74.  Instrument  must  be  exhibited. — The  instrument 
must  be  exhibited  to  the  person  from  whom  payment  is  de- 
manded, and  when  it  is  paid  must  be  delivered  up  to  the 
party  paying  it  (a). 

(a)  Ocean  Nat.  Bank  v.  Fant,  50  N.  Y.  474,  47G:  Smith  v. 
Rockwell,  2  Hill,  482;  Musson  v.  Lake,  4  How.  2(i2 ;  Freeman  v. 


^8  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Boyiiton,  T  Mass.  483 ;  Draper  v.  Cleuiens,  7  Ho.  52.  This  is  requi- 
site in  order  that  the  drawer  or  acceptor  may  be  able  to  judge  (1)  of 
the  genuineness  of  the  instrument;  (2)  of  the  right  of  the  holder 
to  receive  payment;  and  (3)  that  he  may  immediately  reclaim 
possession  upon  paying  the  amount.  Waring  v.  Betts,  90  Va. 
46,  51.  Demand  of  payment  without  actual  exhibition  of  the  note 
is  sufficient  to  bind  the  iudorser  where  the  maker  does  not  demand 
to  see  the  note  but  refuses  payment  on  other  grounds.  Legg  v. 
Viman,  165  Mass.  555;  Waring  v.  Betts,  90  Va.  46;  Lockwood  v. 
Crawford,  18  Conn.  361;  Fall  River  Union  Bank  v.  Willard,  5 
Metcalf,  216.  ^Vhere  the  note  is  secured  by  collaterals  the  maker 
is  entitled  to  require  that  they  be  delivered  with  the  note;  and  if 
he  insists  upon  it,  they  must  be  tendered  with  the  note  or  the 
demand  of  payment  will  not  be  sufficient.  Ocean  Nat.  Bank  v. 
Fant,  50  N.  Y.  474. 

§  75.      Presentment    where    instrument    payable    at 

bank.  —  Where  the  instrument  is  payable  at  a  bank,  pre- 
sentment for  payment  must  be  made  during  banking  hours, 
unless  the  person  to  make  payment  has  no  funds  there  to 
meet  it  at  any  time  during  the  day,  in  which  case  present- 
ment at  any  hour  before  the  bank  is  closed  on  that  day  is 
sufficient  (a). 

(a)  See  Salt  Springs  National  Bank  v.  Burton,  58  N.  Y.  430; 
Bank  of  Syracuse  v.  Hollister,  17  N.  Y.  46 ;  Bank  of  Utica  v.  Smith, 
18  Johns.  230;  Parker  v.  Gordon,  7  East.  387;  Garnett  v.  Wood- 
cock, 1  Starkie,  475 ;  Reed  v.  Wilson,  41  N.  J.  Law,  29 ;  Waring  v. 
Betts,  90  Va.  46;  Shepard  v.  Chamberlain,  8  Gray,  225.  The 
authorities  are  not  agreed  upon  the  point  as  to  the  precise  time 
when  suit  may  be  brought  on  a  dishonored  note  payable  at  a  bank, 
some  holding  that  it  cannot  be  brought  until  the  day  after  its  dis- 
honor, others  that  it  may  be  brought  at  any  time  after  the  expira- 
tion of  business  hours  on  the  day  it  is  payable,  and  others  still 
that  it  may  be  commenced  as  soon  as  payment  is  refused  on  that 
day.  Citizens'  Bank  v.  Lay,  80  Va.  436,  440;  Church  v.  Clark,  21 
Pick.  309;  Blackman  v.  Nearing,  43  Conn.  60;  Humphreys  v.  Sut- 
cliffe,  192  Pa.  St.  336.  If  a  note  held  by  a  bank  at  which  it  is  pay- 
able is  not  paid  when  due,  no  presentment  and  demand  of  payment 
are  necessary.  Dykman  v.  Northridge,  1  App.  Div.  (N.  Y.)  26.  It 
is  sufficient  that  the  note  was  in  the  bank  on  the  day  it  fell  due. 


PRESENTMENT    FOR    PAYMENT.  79 

and  that  there  were  no  funds  of  the  maker  there,  or  other  pro- 
vision for  payment.  Ilallowell  v.  Curi-y,  41  Pa.  St.  322.  Where  a 
national  bank  has  ken  placed  in  the  hands  of  a  receiver,  paper 
payable  at  the  bank  should  be  presented  at  the  office  of  the  receiver. 
Hutchison  v.  Crutcher,  98  Tenn.  421.  And  presentment  there  is 
not  excused  because  he  has  removed  his  office  and  the  assets 
of  the  bank  to  another  building  in  the  same  place.  (Id.)  But  see 
Berg  V.  Abbott,  83  Pa.  St.  177.  It  has  been  held  that  the  office  of 
a  private  banker  is  not  a  bank  within  the  terms  of  a  note  made 
payable  at  "  any  bank  in  Boston."  Way  v.  Butterworth,  108  Mass. 
509.  As  to  bank  customs  see  Grand  Bank  v.  Blanchard,  23  Pick. 
305,  306;  Mechanics'  Bank  v.  Merchants'  Bank,  6  Mete.  13,  24; 
Boston  Bank  v.  Hodges,  9  Pick.  420;  People's  Bank  v.  Keech,  26 
Md.  521.  But  now  that  the  statute  prescribes  the  rules  as  to  pre- 
sentment these  matters  can  no  longer  be  governed  by  custom; 
certainly  not  if  the  custom  conflicts  with  the  statute. 

§  76.  Presentment  where  principal  debtor  is  dead. 
— Where  the  person  primarily  liable  on  the  instrument  is 
dead,  and  no  place  of  payment  is  specified,  presentment  for 
payment  must  be  made  to  his  personal  representative,  if  such 
there  be,  and  if  with  the  exercise  of  reasonable  diligence,  he 
can  be  found  (a). 

(a)  But  there  must  be  competent  and  legal  proof  of  his  death, 
and  that  the  party  upon  whom  the  demand  was  made  was  such 
representative;  the  statement  of  these  facts  in  the  protest  is  not 
prima  facie  proof  thereof.     Weems  v.  Farmers'  Bank,  15  Md.  231. 


§  77.  Presentment  to  persons  liable  as  partners. — 
\\^here  the  persons  primarily  liable  on  the  instrument  are 
liable  as  partners,  and  no  place  of  payment  is  specified,  pre- 
sentment for  payment  may  be  made  to  any  one  of  them,  even 
though  there  has  been  a  dissolution  of  the  hrm  (a). 

(a)  Gates  v.  Beecher,  60  N.  Y.  518;  Cayuga  County  Bank  v. 
Hunt,  2  Hill,  635;  Crowley  v.  Barry,  4  Gill,  104;  Fourth  Xat.  Bank 
V.  Henschuk,  52.  Mo.  207. 


So  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  78.  Presentment  to  joint  debtors. — Where  there  are 
several  persons  nut  partners,  primarily  liable  on  the  instru- 
ment, and  no  place  of  payment  is  specified,  presentment  must 
be  made  to  them  all  (a). 

(a)  Gates  v.  Beecher,  60  N.  Y.  518,  523 ;  Union  Bank  v.  Willis, 
8  Mete.  50-i;  Arnold  v.  Dresser,  8  Allen,  435;  Willis  v.  Green,  5 
Hill,  232;  Benedict  v.  Schmieg,  13  Wash.  476.  In  some  cases  this 
niiglit  be  impracticable,  but  such  cases  are  covered  by  section  82. 

g  79.  When  presentment  not  required  to  charge 
the  drawer. — Presentment  for  payment  is  not  required  in 
order  to  charge  the  drawer  where  he  has  no  right  to  expect 
or  require  that  the  drawee  or  acceptor  will  pay  the  instru- 
ment (a). 

(a)  But  presentment  is  not  dispensed  with  merely  because  the 
drawer  has  no  funds  in  the  hands  of  the  drawee.  Life  Insurance 
Company  v.  Pendleton,  112  U.  S.  708;  Dickens  v.  Beal,  10  Pet.  572; 
Welch  V.  B.  C.  Taylor  Mfg.  Co.,  82  111.  581;  Kimbah  v.  Bryan,  56 
Iowa,  632;  Kinsley  v.  Kobinson,  21  Pick.  327.  It  is  sufficient  if 
the  drawer  had  a  reasonable  expectation  that  the  bill  would  be 
paid;  or  if  there  was  an  agreement  between  him  and  the  drawee 
that  the  latter  should  accept,  or  a  course  of  dealing  between  them 
by  which  the  drawee  was  accustomed  to  accept  without  reference 
to  the  state  of  the  mutual  accounts.  See  cases  cited  above.  Present- 
ment of  a  check  is  excused  where  the  making  of  the  check  was  a 
fraud  upon  the  part  of  tlie  drawer,  he  having  no  funds  in  the  bank, 
and  no  ground  for  a  reasonable  expectation  that  it  would  be  paid. 
Beauregard  v.  Knowlton,  156  Mass.  395,  396. 

§  80.  When  presentment  not  required  to  charge 
the  indorser. — Presentment  for  payment  is  not  required  in 
order  to  charge  an  indorser  where  the  instrument  was  made 
or  accepted  for  his  accommodatifni,  and  he  has  no  reason  to 
expect  that  the  instrument  will  be  paid  if  presented. 

§  81.  When  delay  in  making  presentment  is  ex- 
cused.— Delay    in    making    presentment    for    payment    is 


PRESENTMENT    FOR    PAYMENT.  8 1 

excused  when  the  delay  is  caused  by  circumstances  be- 
yond the  control  of  the  holder  and  not  imputable  to  his 
default,  misconduct  or  negligence  {a).  When  the  cause  of 
delay  ceases  to  operate,  presentment  must  be  made  with  rea- 
sonable diligence. 

(a)  Wiiulliam  Bank  v.  Norton,  22  Conn.  213;  Pier  v.  Ilein- 
richsoffon,  G7  Mo.  1G3.  In  these  cases  the  delay  was  caused  by 
miscarriage  in  the  mail.  See  section  105.  Sickness  of  the  holder 
of  the  note  is  not  an  excuse  for  the  failure  to  present  it  at  the 
proper  time,  unless  it  was  not  only  sudden,  but  so  severe  as  not 
only  to  prevent  him  from  making-  the  presentment  and  giving  notice 
of  non-payment  himself,  hut  from  employing  another  person  to 
do  it;  and  then  it  must  be  shown  that  the  proper  steps  were  taken 
as  soon  as  the  disability  was  removed.  Wilson  v.  Senier,  14  Wis. 
380.  Where  the  facts  are  not  disputed  the  question  of  due  dili- 
gence is  one  of  law  for  the  court;  but  if  there  is  a  dispute  as  to 
the  facts,  the  question  is  for  the  jury.  Belden  v.  Lamb,  17  Conn. 
451. 

§  82.  When  presentment  may  be  dispensed  with. — 
Presentment  for  payment  is  dispensed  with  : 

1.  AVhere  after  the  exercise  of  reasonable  diligence 
presentment  as  required  by  this  act  cannot  be  made  (a)  ; 

2.  \\'here  the  drawee  is  a  fictitious  person  ; 

3.  By  waiver  of  presentment  express  or  implied  (b). 

(a)  The  burden  is  upon  the  plaintiff  to  show  that  due  diligence 
was  used.  Eaton  v.  McMahon,  42  Wis.  484.  It  is  the  duty  of  a 
holder  to  give  the  notary  information  as  to  the  residence  of  the 
drawer  and  indorser;  and  if  this  is  unknown  to  the  holder,  he 
must  inquire  of  those  whose  names  are  upon  the  note  or  bill  as 
to  the  residence  which  he  does  not  know.  If  there  are  none  such, 
he  must  use  due  diligence  to  ascertain  them.  It  will  not  do  for 
the  holder  to  put  the  note  or  bill  in  the  hands  of  the  notary  at  the 
place  where  it  was  drawn  without  furnishing  him  any  informa- 
tion as  to  the  residence  of  the  maker,  or  that  of  the  indorser,  and 
then  for  the  notary,  without  inquiry  from  him,  to  return  the  note 
without  demand  or  notice.  The  holder  is  the  one  most  likely  of 
all  persons  to  know  the  place  of  rosidonce  of  those  to  whom  he 


82  THE    NEGOTIARLE    IXSTRUMENTS    LAW. 

looks  for  payiiiL'iit,  and  due  dilifjence  requires  that  he  should  give 
the  information  to  his  agent,  whom  he  employs  to  make  demand 
from  the  maker  and  give  notice  to  the  indorser;  or,  if  he  neglects 
to  do  so,  that  the  agent  should  inquire  of  him  where  the  parties 
reside.  Smith  v.  Fisher,  24  Pa.  St.  222.  When  the  facts  are 
undisputed,  the  question  of  diligence  is  for  the  court.  Smith  v. 
Fisher,  24  Pa.  St.  222;  Wheeler  v.  Field,  6  Mete.  290.  Present- 
ment is  not  dispensed  with,  by  the  insolvency  of  the  maker  or 
drawee.  Eienke  v.  Wright  (Wis.),  67  N.  W.  Kep.  737;  Haw- 
ley  V.  Jette,  10  Oregon  31;  Bensonhurst  v.  Wilby,  45  Ohio  St. 
340;  Jackson  v.  Kichards,  2  Gaines,  343;  Armstrong  v.  Thurston, 
11  Md.  148. 

(h)   The  waiver  may  be  made  either  during  the  currency  of  the 
note  or  after  its  maturity.     Power  v.  Mitchell,  7  Wis.  IGl.       It 
may  be  made  either  verbally  or  in  writing.     Smith  v.  Lownsdalo, 
6  Oregon  78.     ISTor  is  it  necessary  that  the  waiver  should  be  direct 
and  positive.     It  may  result  from  implication  and  usage,  or  from 
any  understanding  between  the  parties  which   is   of  a   character 
to  satisfy  the  mind  that  a  waiver  is  intended.     Cady  v.  Bradshaw, 
116  N.  Y.  188,  191.     The  assent  must  be  clearly  established,  how- 
ever, and  will  not  be  inferred  from  doubtful  or  equivocal  acts  or 
language.     Ross   v.  Hurd,  71   N.   Y.   14.     But  any  language  cal- 
culated to   induce  the  holder   not  to   make  demand  or  protest  is 
sufficient.     Moyer  &  Brothers'  Appeal,  87  Pa.  129;  Boyd   v.  Bank 
of   Toledo,   32   Ohio    St.,    526.     Where   the   indorser   requests   the 
holder   to   extend   the  time   of   payment   and   promises   to  let  his 
name  remain   on  the   instrument,   this  will   amount   to   a   waiver 
of  presentment  and  notice  of  non-payment.     Cady   v.   Bradshaw, 
116  N.  Y.  188,  191,  192.     So  a  telegram  sent  to  the  collecting  bank 
requesting   it  to  pay  the   note  and  save  protest  and  draw  on,  in 
reply  to  an  inquiry  made  of  the  firm  by  such  bank,  is  a  sufficient 
waiver.     Seldner  v.  Mount  Jackson   ISTational  Bank,  66  Md.  488. 
So    where    an    indorser    admits   his    liability    at    the    time   of    the 
maturity  of  the  note  and  accompanies  such  admission  with  an  offer 
to  "  arrange  the  matter"  with  the  holders,  and  thereafter  by  his 
conduct   shows   that  he   regards   himself   as   liable,   and   asks   for 
indulgence.     Moyer  &  Brothers'  Appeal,  87  Pa.  St.  129.     So  where 
a   note    is    a    short    time    before    the    day    of    its    maturity,    pre- 
sented to  an  indorser,  and  the  latter  then  promises  that  if  the  note 
is  suffered  to  run  he  will  pay  it  whenever  payment  is  called  for. 
Hale  V.  Danforth,  46  Wis.  554.     And  so,  where,  in  response  to  in- 
quiry by  the  holder,  the  indorser  told  him  that  it  would  be  of  no 


PRESENTMENT     FOR     l'.\\ M  KXT.  83 

use  to  call  upon  the  maker.  Barker  v.  Parker,  6  Pick.  80.  A 
waiver  of  the  right  to  notice  does  not  excuse  demand  of  paj'ment. 
Berkshire  Bank  v.  Jones,  6  Mass.  524;  Low  v.  Howard,  11  Cush. 
2GS,  270.  An  agreement  to  waive  demand  and  notice  is  not 
within  the  statute  of  frauds;  it  is  not  a  new  contract,  but  only  a 
waiver  absolutely  or  in  part  of  a  condition  precedent  to  liability. 
Taunton  Bank  t'.  Richardson,  5  Pick.  436;  Barclay  v.  Weaver,  19 
Peini.  State  K.  390;  Power  ('.Mitchell,  7  Wis.  159, 160,  As  to  waiver 
wliere  the  maker  has  transferred  all  his  property  to  the  indorsee, 
see  Brandt  v.  Mickle,  20  Md.  436;  Mechanics'  Bank  v.  Griswold,  7 
Wend.  165;  Moore  v.  Alexander,  63  App.  Div.  (N.  Y.)  100;  Brown 
V.  Maffey,  15  East  222 ;  Bond  v.  Farnham,  5  Mass.  170. 

§  83.  When  instrument  dishonored  by  non-payment. — 

The  instrument  is  dishonored  1)y  non-payment  when: 

1.  It  is  duly  presented  for  i)ayment  and  payment  is  refused 
or  cannot  be  obtained ;  or 

2.  Presentment  is  excused  and  the  instrument  is  overdue 
and  unpaid. 

§  84.  Liability  of  person  secondarily  liable,  when  in- 
strument dishonored. — Subject  to  the  provisions  of  this 
act.  when  the  instrument  is  dishonored  by  non-payment,  an 
immediate  ri,^ht  of  recourse  to  all  parties  secondarily  liable 
thereon,  accrues  to  the  holder  (a). 

(a)  When  the  indorser's  liability  has  been  fixed  by  demand  and 
notice  of  dishonor,  he  becomes  an  independent  and  principal 
debtor,  and  does  not  stand  in  the  position  of  a  mere  surety.  Ger- 
man-American Bank  V.  Niag-ara  Cj^cle  Co.,  13  App.  Div.  450 ;  First 
Nat.  Bank  v.  Wood,  71  N.  Y.  405,  411.  Thoujih  the  holder  has 
received  collateral  from  the  maker,  the  law  implies  no  contract 
to  proceed  on  the  collaterals  before  suing  the  indorser.  Buck  r. 
Freehold  Bank,  37  N.  J.  Law,  307.  The  section  does  not  change 
the  law  as  to  conditional  guaranties,  as,  for  example,  a  guaranty 
of  the  collectibility  of  the  instrument,  in  which  case  there  is  no 
right  of  recourse  against  the  guarantor  until  the  holder  has  first 
made  proper  effort  to  collect  from  the  principal  debtor,  Cowles  r. 
Peck,  55  Conn.  251;  Summers  v.  Barrett,  65  Iowa  292;  for  in  such 
case  the  terms  of  the  express  contract  exclude  the  idea  of  an  in- 
tention to  incur  tlio  liability  prescribed  by  the  statute. 


84  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  85.  Time  of  maturity.— Every  negotiable  instru- 
ment is  payable  at  the  time  fixed  therein  without  grace  (a). 
AMien  the  day  of  maturity  falls  upon  Sunday  or  a  holiday, 
the  instrument  is  payable  on  the  next  succeeding  business 
(lav.  Instruments  falling  due"^'  on  Saturday  are  to  be  pre- 
sented for  payment  on  the  next  succeeding  business  day,  ex- 
ce])t  that  instruments  payable  on  demand  may,  at  the  option 
of  the  holder,  be  presented  for  payment  before  twelve  o'clock 
noon  on  Saturday  when  that  entire  day  is  not  a  holiday  (b). 

(a)  Besides  the  States  in  which  the  Negotiable  Instruments  Law 
has  been  adopted,  days  of  grace  have  been  abolished  in  the  following 
States:  California,  Idaho,  Illinois,  Maine,  Montana,  New  Jersey, 
Vermont. 

(h)  Laws  of  Mass.  March  30,  1895,  May  28,  1895;  Laws  of  Maine, 
1897,  Ch.  259 ;  Laws  of  New  York,  1887,  Ch.  289,  Ch.  461 ;  Laws  of 
Penn.  May  31,  1893;  Laws  of  U.  S.  Feb.  18,  1893;  Laws  of  N.  J. 
1895,  Ch.  43.  In  the  Wisconsin  Act  all  after  the  second  sentence 
is  omitted.  In  the  Colorado  Act  the  following  is  substituted  for 
the  third  sentence :  "  Instruments  falling  due  on  any  day,  in  any 
place  where  any  part  of  such  day  is  a  holiday,  are  to  be  presented 
for  payment  on  the  next  succeeding  business  day,  except  that  in- 
struments payable  on  demand  may,  at  the  option  of  the  holder,  be 
presented  for  payment  during  reasonable  hours  of  the  part  of 
such  day  which  is  not  a  holiday."  In  the  North  Carolina  Act  a 
provision  (Sec.  197)  is  added  as  follows:  "The  laws  now  in  force 
in  this  State  with  regard  to  days  of  grace  shall  remain  in  force 
and  shall  not  be  construed  to  be  repealed  by  this  act."  In  Massa- 
chusetts the  amendatory  act  (Laws  1899,  c.  130)  provides:  "On 
all  drafts  and  bills  of  exchange  made  payable  within  this  Com- 
monwealth at  sight  three  days  of  grace  shall  be  allowed,  unless 
there  is  an  express  stipulation  therefor  to  the  contrary."  See 
p.  149. 

§  86.  Time  ;  how  computed. — \Miere  the  instrument 
is  payable  at  a  fixed  period  after  date,  after  sight,  or  after 
the  happening  of  a  specified  event,  the  time  of  payment  is 

*  In  New  York  the  words  "  or  becoming  payable"  were  added  by 
Laws  N.  Y.  1898,  c.  ^36.  They  are  not  in  the  statute  in  the  other 
States. 


PRESENTxMEXT     FOR     PAYMENT.  85 

determined  bv  excludin.L;-  the  day  from  which  the  time  is  to 
begin  to  run,  and  hy  including  the  date  of  payment  (a). 

(a)   See  New  York  Statutory  Construction  Law,  sections  2G,  27. 

§  87.  Rule  where  instrument  payable  at  bank. — 
^^■'here  the  instrument  is  made  payable  at  a  bank  it  is  equiva- 
lent to  an  order  to  the  bank  to  pay  the  same  for  the  account 
of  the  principal  debtor  thereon  (a). 

(a)  There  is  some  conflict  in  the  decisions  as  to  the  authority  of 
a  bank  to  pay  a  note  or  acceptance  made  payable  there.  The  rule 
adopted  in  the  statute  is  the  one  sustained  by  the  weight  of  author- 
ity; and  is  also  the  rule  which  is  most  convenient  in  practice.  It 
is  supported  by  the  following  decisions :  .Etna  Nat.  Bank  v.  Fourth 
Nat.  Bank,  46  N.  Y.  82;  Commercial  Bank  v.  Hughes,  17  Wend. 
94;  Commercial  Nat.  Bank.  v.  Henninger,  105  Pa.  St.  496;  Bedford 
Bank  V.  Acoarn,  125  Ind.  582;  Home  Nat.  Bank  v.  Newton,  8  Brad- 
well,  563;  contra:  Grissom  v.  Commercial  Bank,  87  Tenn.  .350.  In 
Pennsylvania  it  is  held  that  where  a  bank  is  the  holder  of  a  note 
payable  at  the  banking  house,  and  upon  its  maturity  the  maker 
has  a  cash  deposit  in  such  bank  exceeding  the  amount  of  the  note, 
which  deposit  is  not  specially  applicable  to  a  particular  purpose, 
the  bank  is  bound  to  charge  up  the  amount  of  the  note  against 
the  deposit.  In  such  cases  the  note  is  in  effect  a  draft  on  the 
bank  in  favor  of  the  holder,  and  in  discharge  of  the  indorser.  Ger- 
man National  Bank  v.  Foreman,  138  Pa.  St.  474,  479.  Commer- 
cial National  Bank  v.  Henninger,  105  Pa.  496  But  it  is 
also  held  in  that  State  that  while  a  bank  which  has  discounted 
a  promissory  note  may  appropriate  to  the  paj'ment  of  the  note  funds 
in  its  hands  belonging  to  any  party  to  the  note,  when  payment 
is  not  made  at  the  time  and  place  named,  yet  it  is  not  bound  to 
do  so  as  to  any  party  except  the  maker.  Mechanics'  and  Traders' 
Bank  v.  Seitz,  150  Pa.  St.  632. 

§  88.  What  constitutes  payment  in  due  course. — 
Payment  is  made  in  due  course  when  it  is  made  at  or  after 
the  maturity  of  the  instrument  (a)  to  the  holder  (b)  thereof 
in  good  faith  and  without  notice  that  his  title  is  defective. 

(a)  Payment  before  the  day  is  a  defense  which  binds  only  the 


86  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

party  receiving  payment  and  those  who  stand  in  his  shoes.    Watson 
V.  Wyman,  161  Mass.  96,  99. 

{h)  It  is  the  duty  of  the  maker  to  see  that  the  payee  has  it  in 
possession,  and  to  take  it  up  when  he  pays  it.  Adair  v.  Lenox,  15 
Oregon  489.  The  rule  is  that  if  a  bill  be  paid  at  maturity,  in  full, 
by  the  acceptor,  or  other  party  liable,  to  a  person  having  a  legal 
title  in  himself  by  indorsement,  and  having  the  custody  and  posses- 
sion of  the  bill  ready  to  surrender,  and  the  party  paying  has  no 
notice  of  any  defect  of  title  or  authority  to  receive,  the  payment  will 
be  good.  But  if  upon  such  payment  the  holder  has  not  the  actual 
possession  of  the  bill  ready  to  be  delivered,  and  does  not  in  fact 
surrender  it,  but  gives  a  receipt  or  other  evidence  of  the  payment, 
and  it  turns  out  that  the  party  thus  receiving  had  not  a  good  right 
and  lawful  authority  to  receive  and  collect  the  money,  but  that 
another  person  has  such  right,  the  payment  will  not  discharge  the 
party  paying,  but  will  be  a  payment  in  his  own  wrong.  Wheeler  v. 
Guild,  20  Pick.  545,  553;  Trustees  of  the  I.  I.  Funds  v.  Lewis,  34 
Fla.  424,  428.  And  payment  made  to  the  original  holder,  after  in- 
dorsement and  delivery  of  the  paper  even  as  collateral  security, 
is  no  defense  to  a  suit  on  the  note  by  the  indorsee,  although  the 
payment  was  made  by  the  maker  without  notice  or  knowledge  of 
the  transfer.  Gosling  v.  Griffin,  85  Tenn.  737.  But  while  a  per- 
son not  in  the  actual  possession  of  negotiable  paper  is  presumed 
from  that  fact  alone  to  have  no  authority  to  receive  payment 
thereon,  yet  such  presumption  may  be  rebutted  and  overcome  by 
evidence  showing  actual  authority.     Swengle  v.  Wells,  7  Ore.  222. 


ARTICLE  VII.* 
Notice  of  Dishonor. 

Section  89.  To  whom  notice  of  dishonor  must  be  given. 

90.  By  whom  given. 

91.  Notice  given  by  agent. 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows :  Colorado,  Connecticut,  District  of  Co- 
lumbia, Florida,  Massachusetts.  North  Carolina,  North  Dakota,  Ore- 
gon, Tennessee,  Utah,  Virginia  and  Washington.  89-118:  New  York, 
i6o-i8g;  Maryland,  108-137;  Rhode  Island,  97-126;  Wisconsin,  1678-48. 


NOTICE    OF    DISHONOR.  8/ 

Section    92.  Effect  of  notice  given  on  behalf  of  holder. 

93.  Effect  where  notice  is  given  by  party  entitled 

thereto. 

94.  When  agent  may  give  notice. 

95.  When  notice  sufficient. 

96.  Eorm  of  notice. 

97.  7'o  whom  notice  may  be  given, 

98.  Notice  where  party  is  dead. 

99.  Notice  to  partners. 

100.  Notice  to  persons  jointly  liable, 

loi.  Notice  to  bankrupt. 

102.  Time  within  wliich  notice  must  be  given, 

103.  Where  parties  reside  in  same  place. 

104.  \\'here  parties  reside  in  different  places. 

105.  When  sender  deemed  to  have  given  due  notice. 

106.  Deposit  in  post-office,  what  constitutes. 

107.  Notice  to  subsequent  parties,  time  of. 

108.  Where  notice  must  be  sent. 

109.  W^aiver  of  notice. 

ITO.  \\']iom  affected  by  wai\-er. 

ITT.  Waiver  f)f  protest. 

I T2.  When  notice  dispensed  with. 

1 13.  Delay  in  giving  notice;  how  excused. 

1 14.  V/hen  notice  need  not  be  given  to  drawer. 

115.  When  n(  )tice  need  n(  it  be  given  to  indorser. 

116.  Notice  of  non-i)a\incnt  wliere  acceptance  re- 

fused. 

117.  Effect  of  omission  to  give  notice  of  non-accept- 

ance. 

118.  When  protest  need  not  be  made;  when  must  be 

made. 

§89.  To  whom  notice  of  dishonor  must  be  given. — 
Except  as  herein  otherwise  provided,  when  a  negotiable  in- 
strument has  been  dishonored  by  non-acceptance  or  non- 
payment, notice  of  dishonor  must  be  given  to  the  drawer  and 


88  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

to  each  indorser,  and  any  drawer  or  indorser  to  whom  such 
notice  is  not  given  is  discharged  (a). 

(a)  This  rule  does  not  apply  to  guarantors.  Brown  v.  Curtiss, 
2  N.  Y.  225 ;  Allen  v.  Rightmere,  20  Johns.  365 ;  Breed  v.  Hillhouse, 
7  Conn.  523;  Roberts  v.  Hawkins,  70  Mich,  56G;  Hungerford  v. 
O'Brien,  37  Minn.  306.  And  proceedings  against  the  maker  are 
necessary  only  where  there  is  a  guaranty  of  collection.  Brown  v. 
Curtiss,  supra.  The  burden  of  proving  that  due  notice  was  given 
is  on  the  holder.     Marks  v.  Boone,  24  Fla.  177. 

§  90.  By  whom  given. — The  notice  may  be  given  by 
or  on  Ijehalf  of  the  holder,  or  by  or  on  behalf  of  any  party 
to  the  instrument  who  might  be  compelled  to  pay  it  to  the 
holder,  and  who,  upon  taking  it  up.  would  ha\-e  a  right  to 
reimbursement  from  the  party  to  whom  the  notice  is  given 

(a)  It  was  once  held  that  no  party  could  give  a  valid  notice 
unless  he  was  the  holder  at  the  time.  Tindal  v.  Brown,  1  Term 
Eep.  167.  But  this  doctrine,  after  having  been  followed  in  other 
cases  (ex  parte  Barclay,  7  Ves.,  597;  Stewart  v.  Kennett,  2  Camp., 
177),  was  expressly  overruled  in  the  case  of  Chapman  v.  Keane  (3 
Adol.  &  Ellis,  193),  in  which  most  of  the  previous  decisions  were 
reviewed.  But  notice  by  a  stranger  is  not  sufficient.  Lawrence  v. 
Miller,  16  N.  Y.  235,  237;  Chanoine  v.  Fowler,  3  Wend.  173; 
Brailsford  v.  Williams,  15  Md.  151.  And  a  party  who  has  been  dis- 
charged by  laches,  and  cannot  in  any  event  bring  an  action  on  the 
instrument,  is  deemed  a  stranger  for  this  purpose.  Harrison  v. 
Ruscoe,  15  L.  J.  Exch.  110 ;  15  M.  &  W.  231.  A  drawee  who  refuses 
acceptance  cannot  give  notice.     Stanton  v.  Blossom,  14  Mass.  116. 

I  91.  Notice  given  by  agent. — Notice  of  dishonor 
may  be  given  by  an  agent  either  in  his  own  name  (a)  or  in 
the  name  of  any  party  entitled  to  give  notice,  whether  that 
party  be  his  principal  or  not  (b). 

(a)  Drexler  v.  McGlynn,  99  Cal.  143.  But  a  notice  made  out  by 
a  notary  public  and  signed  by  mistake  with  the  name  of  the  maker 
of  the  note  instead  of  with  his  own  name,  without  the  authority 
of  the  maker,  is  insufficient.     Cabot  Bank  v.  Warner,  92  Mass.  522. 


NOTICE    OF    DISHONOR,  89 

(6)  Banks  as  agents  for  collection  have  authority  to  receive  and 
transmit  notices  on  behalf  of  the  owners  of  the  paper.  West  River 
Bank  v.  Taylor,  34  N.  Y.  128,  130;  Colt  v.  Noble,  5  Mass.  167; 
Haynes  v.  Birks,  3  Bor.  &  Pul.  599;  Robson  v.  Bennett,  2  Taunt. 
388.  An  agent  in  giving  notice  represents  and  acts  on  behalf  of 
his  principal,  and  this,  though  he  may  be  a  notary  and  act  in  his 
official  character.     Lawrence  v.  Miller,  16  N.  Y.  235,  238. 

§92.  Effect  of  notice  given  on  behalf  of  holder. — 
Where  notice  is  g^iven  by  or  on  behalf  of  the  holder,  it 
enures  for  the  benefit  of  all  subsequent  holders  and  all  prior 
parties  who  have  a  right  of  recourse  against  the  party  to 
whom  it  is  given  (a). 

(a)  But  the  holder  is  not  bound  to  give  notice  to  any  one  but  his 
immediate  indorscr.  West  River  Bank  v.  Taylor,  34  X.  Y.  128, 
131;  Linn  v.  Ilorton,  17  Wis,  150,  153, 

§  93,  Effect  where  notice  is  given  by  party  entitled 
thereto.  —  Where  notice  is  given  by  or  on  behalf  of  a  party 
entitled  to  give  notice,  it  enures  for  the  benefit  of  the  holder 
and  all  parties  subsequent  to  the  party  to  whom  such  notice 
is  given. 

§  94.  When  agent  may  give  notice. — Where  the  in- 
strument has  been  dishonored  in  the  hands  of  an  agent,  he 
may  either  himself  give  notice  to  the  parties  liable  thereon, 
or  he  may  give  notice  to  his  principal.  If  he  give  notice  to 
his  principal,  he  must  do  so  within  the  same  time  as  if  he 
were  the  holder,  and  the  principal,  upon  the  receipt  of  such 
notice,*  himself  the  same  for  giving  notice  as  if  the  agent 
had  been  an  independent  holder  (a). 

(a)  Rosson  v.  Carroll,  90  Tenn.  90. 

*  The  word  "  has"  omitted  in  Pennsylvania  statute  through  error  in 
cngrossinsr. 


90  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  95.  When  notice  sufficient. — A  written  notice  need 
not  be  signed  {a),  and  an  insufticient  written  notice  may  be 
supplemented  and  validated  by  verbal  communication.  A 
misdescription  of  the  instrument  does  not  vitiate  the  notice 
unless  the  party  to  whom  the  notice  is  gi\-en  is  in  fact  misled 
thereby  (b). 

(a)  See  Bank  v.  Dibrell,  91  Tenn.  301;  Spann  v.  Baltzell,  1  Fla. 
301 ;  Kilgore  v.  Bulkley,  14  Conn.  362 ;  Tobey  v.  Lenning,  14  Pa.  St. 
483. 

(h)  Aiken  v.  Marine  Bank,  16  Wis.  679.  Where  the  instru- 
ment is  misdescribed,  the  fact  that  there  is  no  other  instrument  to 
which  the  notice  could  be  applied  may  be  shown  by  extrinsic  evi- 
dence.   Cayuga  County  Bank  v.  Worden,  6  N.  Y.  19. 

§  96.  Form  of  notice. — The  notice  may  be  in  writing 
or  merely  orah  and  may  be  given  in  any  terms  which  suffi- 
ciently identify  the  instrument,  and  indicate  that  it  has  been 
dishonored  by  non-acceptance  or  non-payment  (a).  It  may 
in  all  cases  be  given  by  delivering  it  personally  or  through 
the  mails  (b). 

(a)  Sasscer  v.  Farmers'  Bank,  4  Md.  409;  Brewster  v.  Arnold,  1 
Wis.  264.  A  notice  which  omits  an  essential  feature  of  the  note, 
or  misdescribes  it,  is  an  imperfect  one,  but  not  necessarily  invalid. 
It  is  invalid  oidy  where  it  fails  to  give  that  particular  information 
which  it  would  have  given  but  for  its  particular  imperfection ;  and 
even  in  case  the  notice  in  itself  be  defective,  if,  from  evidence 
aliunde  of  the  attendant  circumstances,  it  is  apparent  that  the  in- 
dorser  was  not  deceived  or  misled  as  to  the  identity  of  the  dis- 
honored instrument,  he  will  be  charged.  Hodges  v.  Schuler,  22 
X.  Y.  114;  Artisans'  Bank  v.  Backus,  36  N.  Y.  106;  Gill  v.  Palmer, 
29  Conn.  57;  Rowland  v.  Adrian,  29  N.  J.  Law,  48.  To  make  the 
notice  defective  the  variance  must  be  such  as  that,  under  the  cir- 
cumstances of  the  case,  it  conveys  no  sufficient  knowledge  to  the 
indorser  of  the  identity  of  the  particular  instrument  which  has 
been  dishonored.  Cayuga  County  Bank  v.  Worden,  1  N.  Y.  413, 
417;  Mills  v.  Bank  of  U.  S.,  11  Wheat.  431;  Baid<  of  Alexandria  v. 
Swaim,  9  Peters,  33.  The  notice  is  not  necessarily  defective  be- 
cause it  is  silent  as  to  the  date  and  time  of  payment.  Youngs  v. 


NOTICE    OF    DISHONOR.  9' 

Lee,  12  K.  Y.  551,  or  fails  to  state  that  deinaiid  ot  payment  was 
made,  Mills  v.  Bank  of  U.  S..  11  Wheat.  431,  (.r  does  not  state  at 
whose  request  it  is  given,  nor  wlio  is  the  owner  of  tlie  note.  Shed  v. 
Brett,  1  Pick.  401.  The  term  "  protested"  when  contained  in  a 
notice,  with  the  statement  that  the  holder  looks  to  the  indorser  for 
indemnity,  fairly  and  necessarily  implies  that  the  note  or  bill  has 
been  dishonored.  Brewster  v.  Arnold,  1  Wis.  264.  A  note  is  well 
described  when  its  maker,  payee,  date,  ainniiiit.  i\\n\  time  of  pay- 
ment are  stated.  A  printed  notice  is  sufficient,  Cuyler  t'.  Stevens, 
4  Wend.  56G ;  Bank  of  Cooperstown  v.  Woods,  28  N.  Y.  545,  and  the 
signature  of  the  notary  need  not  be  in  writing,  but  may  be  printed. 
Bank  of  Cooperstown  v.  Woods,  28  N.  Y.  561;  Sussex  Bank  v. 
Baldwin,  2  Ilarr.  (N.  J.),  487.  But  a  notice  which  is  barely 
enough  to  put  the  indorser  upon  inquiry  is  not  sufficient.  Cook  v. 
Litchfield,  9  N.  Y.  279,  281.  It  must  reasonably  apprise  the  party 
of  the  i)articular  paper  upon  which  he  is  sought  to  be  charged. 
Home  Insurance  Co.  v.  Green,  19  N.  Y''.  518 ;  Dodson  v.  Taylor,  56 
N.  J.  Law,  11.  In  the  New  York  ease  cited  the  name  of  the  maker 
was  left  blank,  and  it  was  held  that  the  notice  was  not  sufficient. 
Notice  that  a  note  is  unpaid  would  not  necessarily  imply  that  it 
is  dishonored,  because  the  note  might  remain  unpaid,  while  in  fact 
it  may  never  have  been  presented  to  the  maker  for  payment.  Hun- 
ter V.  Van  Bomhorst,  1  Md.  504,  510.  I'ut  such  notice  might  be  good 
if  the  note  is  payable  at  a  bank.  /'/.  If  the  notice  indicates  that 
the  paper  was  presented  before  due,  it  is  not  sufficient.  Etting  v. 
Schuylkill  Bank,  2  Pa.  St.  355.  The  statement  that  the  holder 
looks  for  payment  to  the  party  to  whom  notice  is  sent  is  not  neces- 
sary; for  this  is  implied  from  the  fact  of  giving  notice.  Bank  of 
U.  S.  V.  Carneal,  2  Peters,  543;  Mills  i-.  Bank,  11  Wheat.  431,  436; 
Nelson  V.  First  Nat.  Bank,  29  U.  S.  App.  554;  69  Fed.  Ecp.  798, 
801;  16  C.  C.  A.  425;  Cowles  v.  Horton,  3  Conn.  523.  Where 
there  is  no  dispute  as  to  the  facts,  the  question  of  the  sufficiency 
of  the  notice  is  a  question  of  law  for  the  court.  Cayuga  County 
Bank  v.  Worden,  6  N.  Y.  19. 

(h)  The  rule  of  the  commercial  law  was  well  settled  that  if  the 
parties  resided  in  the  same  place  the  notice  mus;t  be  personal;  that 
is,  must  be  given  to  the  individual  or  left  at  his  domicile  or  place 
of  business.  Sheldon  J",  lienham,  4  Hill,  129;  Brown  v.  Bank  of 
Abingdon,  85  Va.  95;  Boyd's  Admr.  r.  City  Savings  Bank,  15  Gratt. 
501,  505;  Bell  v.  Hagerstown  Bank,  7  Gill,  216;  Westfall  v.  Farwell, 
13  Wis.  504,  509.  But  the  courts  have  been  inclined  to  restrict  the 
general   rule,    and    established   many   exceptions    to    it.     Bank    of 


92  >         THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Columbia  v.  Lawrence,  1  Peters,  578.  In  the  notes  to  1  American 
Lead.  Cas.  (402)  it  is  said:  "It  is  obvious  that  the  rule  requiring 
personal  notice,  where  the  parties  reside  in  the  same  place,  has 
lost  its  reasonable  force  and  exists  only  by  authority.  Instead  of 
undermining  it  by  exceptions  that  conflict  with  it  in  principle  and 
render  the  subject  embarrassing  in  practice,  it  would  be  much  bet- 
ter to  declare  that  the  rule  itself  has  become  obsolete  and  is  abol- 
ished." But  it  cannot  properly  be  said  that  the  rule  had  become 
obsolete,  having  been  recognized  and  acted  on  in  many  recent  as 
well  as  older  cases,  and  having  in  no  case  been  denied  or  disre- 
garded. It  was,  therefore,  too  firmly  established  to  be  abolished 
by  the  courts.  See  Boyd's  Admr.  v.  City  Savings  Bank,  15  Gratt. 
501,  505.  In  New  York,  service  by  mail  in  such  cases  was  author- 
ized by  Laws  1857,  Chap.  416.  For  the  construction  of  the  former 
statute  of  Wisconsin  see  Smith  t'.  Hill,  6  Wis.  154;  Westfall  v. 
Farwell,  13  Wis.  504. 

§  97.  To  whom  notice  may  be  given. — Notice  of  dis- 
honor may  be  given  either  to  the  party  himself  or  to  his  agent 
in  that  behalf  (a). 

(a)  Fassin  v.  Hubbard,  55  N.  Y.  465,  471 ;  Lake  Shore  National 
Bank  V.  Butler  Colliery  Co.,  51  Hun,  63,  68.  In  Firth  v.  Thrush, 
8  Barn.  &  Cress.  387,  the  opinion  was  expressed  that  authority  to 
indorse  negotiable  paper  carried  with  it  authority  to  receive  notice 
of  its  dishonor.  And  in  Persons  v.  Kruger,  45  App.  Div.  187,  it 
was  held  that  a  notice  of  protest  may  be  served  upon  an  agent  of 
the  payee  and  indorser,  where  the  agent  has  authority  to  make  and 
indorse  paper,  and  has  authority  to  act  and  has  acted  as  the  general 
agent  of  the  payee  in  the  conduct  of  his  business,  and  has  had  full 
charge  of  the  acts  and  dealings  with  the  bank  at  which  the  paper 
was  discounted  and  the  management  of  the  paper.  A  notice  of  non- 
payment sent  to  the  indorser  inclosed  under  seal  and  delivered  by 
the  messenger  to  one  in  the  einployment  of  the  indorser,  with 
directions  not  to  open  it,  is  insufficient.  Paine  v.  Edsell,  19  Pa.  St. 
178. 

§  98.  Notice  where  party  is  dead. — Wlien  any  party 
is  dead,  and  his  death  is  known  to  the  party  giving  notice, 
the  notice  mnst  l)e  given  to  a  personal  representative,  if  there 
be  one,  and  if  with  reasonable  diligence  he  can  be  fonnd  (a). 


NOTICE    OF    DISHONOR.  93 

If  there  Ije  no  personal  representative,  notice  may  be  sent  to 
the  last  residence  or  last  place  of  business  of  the  deceased 

(a)  Dcniiinpor  v.  ]\lillcr,  7  Ap)).  Div.  409;  Bank  of  Purt  Jefferson 
I'.  Darlinj-',  91  IIuii,  23G;  Shoeuberger's  Executor  v.  Lancaster  Sav- 
ings Institution,  28  Pa.  St.  459;  Dodson  v.  Taylor,  56  N.  J.  Law, 
11;  Massachusetts  Bank  v.  Oliver,  10  Gush.  557;  Merchants'  Bank 
V.  Birch,  17  Johns.  24.  See  also  Boyd's  Admr.  v.  City  Savings 
Bank,  15  Gratt.  501;  Snialley  v.  Wright,  40  X.  J.  Law,  471;  Good- 
now  V.  Warren,  122  Mass.  82;  Bealls  v.  Peck,  12  Barb.  245;  Cayuga 
Co.  Bank  V.  Bennett,  5  Hill,  236;  Maspero  v.  Pedesclaux,  22  La. 
Ann.  227. 

(h)  Goodnow  v.  Warren,  122  Mass.  82;  Merchants'  Bank  v. 
Birch,  17  Johns.  25 ;  Lindeman's  Exr.  v.  Guildin,  34  Pa.  St.  54. 


§  99.  Notice  to  partners.— Where  the  parties  to  be 
notified  are  partners,  notice  to  any  one  partner  is  notice  to 
the  firm  (a),  even  though  there  has  been  a  dissolution  (&). 

(a)  But  where  partners  give  a  promissory  note  with  one  of  them 
as  maker  and  the  other  as  indorser,  the  latter  is  not  liable  on  his 
indorsement  unless  he  be  duly  notified  of  the  dishonor  of  the  note. 
Poland  V.  Boyd,  23  Pa.  St.  476. 

(&)  Hubbard  i'.  Matthews,  54  N.  Y.  43,  50;  Coster  v.  Thomason, 
19  Ala.  717;  Slocomb  v.  Lizardi,  21  La.  Ann.  355;  Fourth  Nat. 
Bank  v.  Henschuh,  52  Mo.  207;  Seldner  v.  Mount  Jackson  Nat. 
Bank,  66  ]\rd.  488. 

§  100.  Notice  to  persons  jointly  liable. — Notice  to  joint 
parties  who  are  not  partners  must  be  g-iven  to  each  of 
them,  unless  one  of  them  has  authority  to  receive  such  notice 
for  the  others  (a). 

(a)  Shepard  v.  Hawley,  1  Conn.  367;  Boyd  v.  Orton,  16  Wis. 
495.  For  the  distinction  between  parties  who  are  partners  and 
joint  parties  not  partners,  see  Gates  v.  Beecher,  60  N.  Y.  518.  526. 
See  also  Willis  v.  Green,  5  Hill,  232.  But  see  Shorcr  r.  Faston 
Bank,  33  Pa.  St.  134;  Jarnigan  r.  Stratton,  95  Tcnii.  r.lO. 


94  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  loi.  Notice  to  bankrupt.  —  Where  a  party  has  been 
adjudged  a  bankrupt  or  an  insolvent,  or  has  made  an  assign- 
ment for  the  benefit  of  creditors,  notice  may  be  given  either 
to  the  party  himself  or  to  his  trustee  or  assignee  {a). 

(a)  In  Callahan  i'.  Kentucky  Bank,  82  Ky.  231,  it  was  decided 
that  where  the  indorser  had  made  a  voluntary  assignment  for  the 
benefit  of  creditors,  notice  to  the  assignee  would  bind  the  indorser 
and  his  estate.  And  a  similar  rule  was  adopted  by  the  Supreme 
Court  of  Tennessee  in  American  Nat.  Bank  v.  Junk  Bros.,  94  Tenn. 
634.  On  the  other  hand,  the  Supreme  Court  of  Ohio,  in  House  v. 
Vinton,  43  Ohio  St.  K.,  346,  by  a  majority  opinion,  declined  to 
adopt  this  rule,  making  a  distinction  between  .an  assignee  under  a 
voluntary  general  assignment  and  an  assignee  in  bankruptcy.  In 
this  latter  case,  however,  there  is  a  strong  dissenting  opinion  by 
two  of  the  judges  of  that  court,  in  which  the  soundness  of  the  rule 
as  announced  by  the  Kentucky  court  is  earnestly  insisted  upon. 

§  102.     Time    within    which  notice  must  be  given. — 

Notice  mav  l)e  given  as  soon  as  the  instrument  is  dishonored 
(fl)  ;  and  unless  delay  is  excused  as  hereinafter  provided, 
must  be  given  within  the  times  fixed  by  this  act. 

(a)  The  holder  need  not  wait  until  the  close  of  business  hours, 
but  may  send  notice  at  once.  Bank  of  Alexandria  v.  Swan,  9 
Peters,  33;  Lenox  v.  Eoberts,  2  Wheat.  373;  ex  parte  Moline,  19 
Ves.  216;  Whit  well  v.  Brigham,  19  Pick.  117;  Coleman  v.  Car- 
penter, 9  Pa.  St.  178. 

§  103.     Where  parties   reside  in  same  place. — Where 

the  jjerson  giving  and  the  person  to  receive  notice  resides*  in 
the  same  place,  notice  must  be  given  within  the  following 
times : 

1.  If  given  at  the  place  of  business  of  the  person  to  receive 
notice,  it  must  be  given  before  the  close  of  business  hours 
on  the  day  following  (a)  ; 

2.  If  given  at  his  residence,  it  must  be  given  before  the 
usual  hotirs  of  rest  on  the  day  following  (b)  ; 

3.  If  sent  by  mail,  it  must  be  deposited  in  the  post-office 

*  Error  in  engrossing. 


NOTICE    OF    DISHONOR.  95 

in   time  to  reach  liini   in  usual  course  (jn  the  day  follow- 
ing (c). 

(a)  Adams  v.  Wright,  14  Wis.  408;  Cayuga  County  Bank  v. 
Hunt,  2  Hill,  635;  Marks  v.  Boone,  24  Fla,  177;  Bell  v.  Ilagerstown 
Bank,  7  Gill,  216 ;  Daniel  on  Neg.  Inst.,  section  1038.  The  notice 
must  follow  upon  the  first  demand.    Rosson  v.  Carroll,  90  Tenn.  90. 

(h)  Plu^lps  V.  Stocking,  21  Neb.  444;  Darbishire  v.  Parker,  6 
East.  ^i.  While  service  at  the  place  of  business  must  be  during 
business  hours,  service  at  the  residence  is  not  so  regulated.  It  will 
be  sufficient  if  made  during  any  of  the  hours  when  members  of 
household  are  tending  to  their  ordinary  affairs.  Adams  v.  Wright, 
14  Wis.  408,  416.  If  the  service  is  properly  made  at  the  place  of 
business  or  residence,  it  is  immaterial  that  the  party  to  be  notified 
did  not  in  fact  receive  the  notice.     Adams  v.  Wrigiit.  14  Wis.  408. 

(c)   See  note  to  next  section. 

§  104.  Where  parties  reside  in  different  places. — 
Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  different  places,  the  notice  must  be  given  within  the 
following  times : 

1.  If  sent  by  mail,  it  must  he  deposited  in  the  post-office 
in  time  to  go  by  mail  the  day  following  the  day  of  dishonor, 
or  if  there  be  no  mail  at  a  convenient  hour  on  that  day,  by 
the  next  mail  thereafter  {a). 

2.  If  given  otherwise  than  through  the  ])ost-office,  then 
within  the  time  that  notice  would  have  been  received  in  due 
course  of  mail,  if  it  had  been  deposited  in  the  post-office 
within  the  time  specified  in  the  last  subdivision  (/'). 

(a)  Sanderson  v.  Sanderson,  20  Fla.  292;  Kosson  r.  Carroll,  90 
Tenn.  90;  Stephenson  v.  Dickson,  24  Pa.  St.  148;  Whitwell  v.  John- 
son, 17  Mass.  449.  In  Smith  v.  Poillon,  87  N.  Y.  590,  597.  Earl,  J., 
said:  "From  a  careful  examination  of  all  those  authorities  and 
many  others,  it  is  clear  that  the  law  is  not  precisely  settled.  It 
appears  that  at  first  it  was  supposed  to  be  necessary  that  notice  of 
dishonor  should  be  given  by  the  next  post  after  dishonor,  on  the 
same  day,  if  there  was  one.  That  rule  was  found  inconveniently 
stringent,  antl  then  it  was  held  that  when  the  parties  lived  in 
different  places,  between  which  there  was  a  mail,  the  notice  could 


96  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

be  posted  the  next  day  after  the  dishonor  or  notice  of  dishonor. 
Some  of  the  authorities  hold  that  the  party  required  to  give  the 
notice  may  have  the  whole  of  the  next  day.  Some  of  them  hold 
that  when  there  are  several  mails  on  the  next  day,  it  is  sufficient 
to  send  the  notice  by  any  post  of  that  day.  Other  authorities  lay 
down  the  rule,  in  general  terms,  that  the  notice  must  be  posted 
by  the  first  practical  and  convenient  mail  of  the  next  day ;  and  that 
rule  seems  to  be  supported  by  the  most  authority  in  this  State. 
What  is  a  practical  and  convenient  mail  depends  upon  circum-  ^ 
stances.  It  may  be  controlled  by  the  usages  of  business  and  the 
customs  of  the  people  at  the  place  of  mailing,  and  the  condition, 
situation  and  business  engagements  of  the  person  required  to  give 
the  notice.  The  rule  should  have  a  reasonable  application  in  every 
case,  and  whether  sufficient  diligence  has  been  used  to  mail  the 
notice,  the  facts  being  undisputed,  is  a  question  of  law."  Biit  see 
Burgess  v.  Vreeland,  4  Zab.  (N.  J.),  71;  Winans  v.  Davis,  3  Harr. 
(]Sr.  J.),  276.  Where  it  is  proper  to  send  the  notice  by  the  mail, 
and  it  has  not  arrived  at  as  early  a  date  as  in  the  regular  course 
of  the  mail  it  might  have  come  if  started  at  the  proper  time,  the 
onus  is  upon  the  plaintiff  to  prove  that  it  was  put  in  the  mail  at 
the  proper  time.     Friend  v.  Wilkinson,  9  Graft.  31. 

(b)  Bank  of  Columbia  v.  Lawrence,  1  Peters,  578;  Jarvis  v.  St. 
Croix  Mfg.  Co.,  23  Me.  287. 

§  105.  When  sender  deemed  to  have  given  due 
notice. — Where  notice  of  dishonor  is  duly  addressed  and  de- 
posited in  the  post-office,  the  sender  is  deemed  to  have 
given  due  notice,  notwithstanding  any  miscarriage  in  the 
mails  (a). 

(a)  Windham  Bank  v.  Norton,  22  Conn.  213 ;  Pier  v.  Heinrich- 
soffen,  67  Mo.  163 ;  Bell  v.  Hagerstown  Bank,  7  Gill,  216 ;  Sasscer  v. 
Farmers'  Bank,  4  Md.  409 ;  Cook  v.  Foraker,  193  Pa.  St.  461.  In 
Shed  V.  Brett,  1  Pick.  401,  410,  it  was  said:  "The  mail  being 
established  by  standing  laws  of  the  Government  for  the  purpose 
principally  of  facilitating  the  transmission  of  mercantile  corre- 
spondence, it  being  by  far  the  most  usual  conveyance  of  letters 
and  generally  the  most  sure  as  to  time,  and  safe  in  every  other 
respect,  all  men  who  deal  in  mercantile  paper  are  presumed  to 
assent,  and  even  expect,  that  such  information  as  they  may  want 
will  be  communicated  in  this  way.     And  thus  the  post-office  be- 


NOTICE    OF    DISHONOR.  97 

comes  their  agent;  and  if  it  happened  to  fail  from  any  unexpoctod 
cause,  he  who  made  the  ri^ht  use  of  it  by  placing  his  letter  there 
properly  directed  has  done  all  his  duty,  and  the  consoqucncos  must 
fall  upon  him  who  has  to  receive." 

§  io6.  Deposit  in  post-office  ;  what  constitutes. — No- 
tice is  deemed  to  have  been  deposited  in  the  post-office  when 
deposited  in  any  branch  post-office  or  in  any  letter-box  under 
the  control  of  the  post-office  department  (a). 

(a)  See  Nat.  Bank  v.  Shaw,  79  Me.  37G;  Pearce  v.  Langfit,  101 
Pa.  St.  507;  Johnson  v.  Brown,  15-1  Mass.  105;  Skilbeck  v.  Garbett, 
7  Q.  B.  84G.  In  some  cases  it  has  been  held  that  delivery  to  a  letter 
carrier  was  sufficient.  Pearce  v.  Langfit,  101  Pa.  St.  507;  Shoe- 
maker V.  Mechanics'  Bank,  59  Pa.  St.  79.  But  it  was  not  deemed 
wise  to  adopt  this  rule  in  the  statute. 

§  107.  Notice  to  subsequent  party  ;  time  of. — Where 
a  party  receives  notice  of  dishonor,  he  has,  after  the  receipt 
of  such  notice,  the  same  time  for  giving  notice  to  antecedent 
parties  that  the  holder  has  after  the  dishonor  (a). 

(a)  Howland  v.  Adrian,  29  N.  J.  Law,  41 ;  Howard  v.  Ives,  1 
Hill,  263;  Jameson  v.  Swinton,  2  Taunt.  224;  Shclburne  Falls  Na- 
tional Bank  V.  Townley,  102  Mass  177;  Seaton  v.  Scovill,  18  Kans. 
435;  Haly  v.  Brown,  5  Pa.  St.  178;  Etting  v.  Struthers  r.  Blake, 
30  Pa.  St.  139 ;  Schuylkill  Bank,  2  Pa.  St.  355 ;  Bray  v.  Hadwen, 
5  Maule  &  Sel.  G8;  Linn  v.  Ilorton,  17  Wis.  150.  If  the  holder 
of  an  indorsoii  bill  or  note  chooses  to  rely  upon  the  responsibility 
of  his  immediate  indorser,  there  is  no  necessity  for  his  giving 
notice  to  any  previous  party;  and  if  such  notice  be  properly  given 
in  time,  by  the  other  parties,  it  will  enure  to  the  benefit  of  the 
holder  and  he  may  recover  thereon  against  any  of  them.  Thus,  if 
the  holder  notifies  the  sixth  indorser,  and  he  the  fifth,  and  so  on 
to  the  first,  the  latter  will  be  liable  to  all  the  parties.  And  it  is 
no  objection  to  such  notice  that  it  is  not  in  fact  received  so  soon 
by  the  first  or  any  prior  indorser,  as  if  it  had  been  transmitted 
directly  by  the  holder  or  notary,  provided  it  has  been  seasonably 
sent  by  each  indorser  as  he  received  it.  Colt  v.  Noble,  5  Mass. 
107;  Mead  v.  Engs,  5  Cow.,  303;  Howard  v.  Ives.  1  Hill,  2G3.  And 
the  same  degree  of  diligence  must  be  exercised   on   the  part   of 


98  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

the  indorser  in  forwarding  notice  as  is  required  of  the  holder. 
Ordinary  diligence  must  be  used  in  both  cases.  He  is  not  bound 
to  forward  notice  on  the  very  day  upon  which  he  receives  it,  but 
may  wait  until  the  next.     See  cases  above  cited. 

§  108.  Where  notice  must  be  sent.— Where  a  party 
has  added  an  address  to  his  sig-natnre,  notice  of  dishonor 
must  be  sent  to  that  address  (a)  ;  l)ut  if  he  has  not  given  stich 
address,  then  the  notice  must  be  sent  as  follows : 

1.  Either  to  the  post-office  nearest  to  his  place  of  resi- 
dence, or  to  the  post-office  where  he  is  accustomed  to  receive 
his  letters  (b)  ;  or 

2.  If  he  live  in  one  place,  and  have  his  place  of  business 
in  another,  notice  may  be  sent  to  either  place  (r)  ;  or 

3.  If  he  is  sojourning  in  another  place,  notice  may  be  sent 
to  the  place  where  he  is  sojourning  (d). 

But  where  the  notice  is  actually  received  l)y  the  party 
within  the  time  specified  in  this  act,  it  will  be  sufficient, 
though  not  sent  in  accordance  with  the  re(|uirements  of  this 
section  (e). 

(a)  Bartlett  v.  Eobinson,  39  N.  Y.  187.  In  this  case  the  in- 
dorsement was  in  the  following  form :  "  Chas.  Robinson,  214  E. 
18th  Street."  The  notice  of  dishonor  sent  through  the  post-office 
was  addressed  "  Chas.  Robinson,  Esq.,  City  of  New  York,"  and 
was  not  received  b3'  the  indorser.     Held,  that  he  was  discharged. 

(h)  Bank  of  Columbia  v.  Lawrence,  1  Peters,  578;  National  Bank 
V.  Cade,  73  Mich.  449 ;  Northwestern  Coal  Co.  v.  Bowman,  69  Iowa 
103 ;  Mercer  v.  Lancaster,  5  Pa.  St.  160 ;  Woods  v.  Neeld,  44  Pa.  St. 
86;  Haly  v.  Brown,  5  Pa.  St.  178;  Rand  v.  Reynolds,  2  Graft.  171. 
But  if  sufficient  inquiries  have  been  made,  and  iiiformation  re- 
ceived on  which  the  holder  has  a  right  to  rely,  a  mistake  as 
to  the  nearest  or  usual  post-office  does  not  release  the  indorser. 
Moore  v.  Hardcastle,  11  Md.  486.  For  a  case  where  the  indorser 
received  his  mail  at  two  post-offices,  see  Shelburne  Falls  Nat.  Bank 
V.  Townsley,  107  Mass.  444. 

(c)  Bank  of  U.  S.  v.  Carneal,  2  Peters,  549;  Williams  v.  Bank 
of  U.  S.,  2  Peters,  96;  Montgomery  Co.  Bank  v.  Marsh,  7  N.  Y. 
481.     The  rule  that  notice  might  be  served  at  the  place  of  business. 


NOTICE    OF    DISHONOR.  99 

as  well  as  at  the  resuU'iici-,  was  n^t  r^hantred  by  the  former  statute 
of  Wisconsin,  Laws  ISfJl,  (  h.  7'.».     Siiuu.s  r.   Larkin,   1'.)  Wis.  390. 

((/)  Chouteau  v.  Webster,  (i  Mete.  1;  Young  v.  Durgin,  15  Gray, 
264;  Bigley's  Adm'r.  v.  Clutf,  16  Gratt.  28-t,  291-292. 

(e)  Although  the  residence  or  place  of  business  is  the  usual  and 
proper  place  for  giving  notice,  it  will  be  good  if  actually  given 
anywhere.  Dickens  v.  Hall,  87  Pa.  St.  379,  380.  If  the  party  to 
be  charged  receives  the  notice  in  due  time  he  cannot  object  to 
the  means  employed.  Terrell  v.  Jones,  15  Wis.  253;  Whitford  v. 
Burckmeyer,  1  Gill,  127.  But  if  the  holder  employs  other  means 
than  the  mail  he  does  so  at  his  own  risk.  (Id.)  Notice  sent  by 
telegraph,  for  example,  would  undoubtedly  be  sufficient  if  actually 
received,  and  an  omission  to  post  the  notice  in  due  season  might 
be  corrected  in  this  way.    See  Sec.  104. 

§  109.  Waiver  of  notice. — Notice  of  dishonor  may  be 
waived,  either  before  the  time  of  giving  notice  has  arrived 
or  after  the  omission  to  give  due  notice  (a),  and  the  waiver 
may  be  express  or  implied  (b). 

(a)  Robinson  v.  Barnett,  19  Fla.  670.  If  an  indorser,  with  full 
knowledge  of  the  laches  of  the  holder  in  neglecting  to  protest  a 
bill  or  note,  unequivocally  assents  to  continue  his  liability,  or  to 
be  responsible,  as  though  due  protest  had  been  made,  he  is  held 
to  have  waived  the  right  to  object,  and  will  stand  in  the  same 
position  as  if  he  had  been  regularly  charged  by  presentment,  de- 
mand, and  notice.  This  assent  must  be  clearly  established,  and 
will  not  be  inferred  from  doubtful  or  equivocal  acts  or  language. 
It  has  been  frequently  held  that  a  promise  by  the  indorser  to  pay 
the  note  or  bill,  after  he  has  been  discharged  by  the  failure  to 
protest  it,  will  bind  the  indorser,  provided  he  had  full  knowledge 
of  the  laches  when  the  i)romise  was  made.  A  promise  made  under 
those  cii'cumstances  affords  the  clearest  evidence  that  the  indorser 
does  not  intend  to  take  advantage  of  the  laches  of  the  holder;  and 
the  law,  without  any  new  consideration  moving  between  the  par- 
ties, gives  effect  to  the  promise.  The  assent  of  the  indorser  to  be 
bound,  notwithstanding  he  has  not  been  duly  charged,  may  be 
established  by  any  transaction  between  him  and  the  holder,  whicli 
clearly  indicates  this  purpose  and  intention.  Ivoss  t'.  Hurd,  71 
N.  Y.  14,  18;  Turnbull  v.  Maddux,  68  Md.  579;  Lewis  v.  Brehme, 
33  Md.  412;  Bank  r.  Dibbrell,  91  Tenn.  301;  Low  v.  Howard,  10 


lOO  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Cush.  159;  Smith  v.  Lownsdale,  6  Oregon  78;  Whittaker  v.  Mor- 
rison, 1  Fla.  25.  But  it  must  appear  in  such  case  that  the  in- 
dorser  had  knowledge  of  the  fact  that  the  holder  was  in  default. 
Thornton  v.  Wynn,  12  Wheat.  183 ;  Hunter  v.  Hook,  64  Bark.  469 ; 
Gawtry  v.  Doane,  48  Bai'b.  148;  Schierl  r.  Baumel,  75  Wis.  75; 
Glaser  v.  Kounds,  16  R.  I.  235.  And  in  Massachusetts  it  is  held 
that  knowledge  on  the  part  of  an  indorser  that  demand  upon  the 
maker  has  not  been  made  is  material,  and  must  be  proved,  not- 
withstanding the  fact  that  he  knew  that  the  note  had  not  been 
paid  and  that  notice  of  non-payment  had  not  been  given,  and  was 
aware  that  he  was  discharged  from  all  liability.  Parks  v.  Smith, 
155  Mass.  26,  33;  Garland  v.  Salem  Bank,  9  Mass.  408;  Low  v. 
Howard,  10  Cush.  159;  S.  C.  11  Cush.  268;  Kelley  v.  Brown,  5 
Gray,  108. 

(b)  Jenkins  v.  White,  147  Pa.  St.  303.  A  waiver  will  not  be 
presumed  without  the  most  satisfactory  proof.  Lockwood  v.  Craw- 
ford, 18  Conn.  374.  But  it  is  not  essential  that  the  waiver 
be  in  writing.  When  the  fact  is  established  by  competent  evi- 
dence, a  parol  waiver  is  as  valid  and  binding  as  a  written  one. 
The  only  -difference  is  in  the  character  of  the  proof.  Annville 
National  Bank  v.  Kettering,  106  Pa.  St.  531,  534.  A  part  payment 
of  a  note  by  the  indorser,  not  explained  or  qualified  by  any  accom- 
panying circumstances,  will  be  held  to  be  sufficient  evidence  of 
waiver  of  notice.  Whittaker  v.  Morrison,  1  Fla.  25.  As  to  whether 
an  indorser  who  has  taken  sufficient  security  to  protect  himself 
against  possible  loss  waives  his  legal  right  to  require  proof  of  de- 
mand and  notice,  the  authorities  are  not  agreed.  Smith  v.  Lowns- 
dale,  6  Ore.  78 ;  Haskell  v.  Boardman,  8  Allen,  38 ;  Moore  v.  Alexan- 
der, 63  App.  Div.  100;  Mechanics'  Bank  v.  Griswold,  7  Wend.  165; 
Brown  v.  Maffey,  15  East,  222.  As  to  when  question  of  waiver  is 
for  the  jury,  see  Valley  Nat.  Bank  v.  Uhler,  191  Pa.  St.  356;  Jones 
V.  Roberts,  191  Pa.  St.  152. 


§  110.  Whom  affected  by  waiver. — Where  the  waiver 
is  embodied  in  the  instrument  itself,  it  is  binding  upon  all 
])arties  (a)  ;  but  where  it  is  written  above  the  signature  of 
an  indorser,  it  binds  him  only  (b). 

(a)  Phillips  V.  Dippo,  93  Iowa  35;  Smith  v.  Pickham,  8  Tex. 
Civ.  App.  326;  Bryant  v.  Merchants'  Bank,  8  Bush,  43;  Lowry  v. 


XOTICJ::    Ob"     DlSliUXOK.  lOI 

Steele,  27  Ind.  1G8;  Farmers'  Bank  of  Kentucky  v.  Ewing,  78  Ky. 
264;  Bryant  v.  Taylor,  19  Minn.  39G. 

(b)  Woodman  v.  Thurston,  S  Cusli.  157;  Farmers'  Bank  v. 
Ewing,  78  Ky.  204. 

§  III.  Waiver  of  protest.— A  waiver  of  protest, 
whether  in  the  case  of  a  foreign  l)ill  of  exchange  or  other 
neg-otiahle  instrument,  is  deemed  to  be  a  waiver  not  only  of 
a  formal  protest,  but  also  of  presentment  and  notice  of  dis- 
honor (a). 

(a)  First  Nat.  Bank  v.  Falkenham,  94  Cal.  141.  While  in  a 
strict  and  technical  sense  the  term  protest  when  used  in  reference 
to  commercial  paper  means  only  the  formal  declaration  drawn  up 
and  signed  by  a  notary;  yet  in  a  popular  sense,  and  as  used  among 
men  of  business,  it  includes  all  the  steps  necessary  to  charge  an 
indorser;  and  in  waiving  protest  an  indorser  is  supposed  to  use 
in  it  this  sense.  Coddington  v.  Davis,  1  N.  Y.  186,  189-190 ;  Ann- 
ville  Nat.  Bank  v.  Kettering,  106  Pa.  St.  531 ;  First  Nat.  Bank  v. 
Schreiner,  110  Ba.  St.  188;  Continent  Life  Ins.  Co.  v.  Barber, 
50  Conn.  567;  Brewster  v.  Arnold,  1  Wis.  264;  Wilkie  v.  Chandon, 
1  Wash.  355.  But  the  waiver  will  not  be  extended  beyond  the 
fair  import  of  the  terms;  and  hence,  a  waiver  of  "  notice  of  protest" 
will  not  be  deemed  a  waiver  of  demand.  Sprague  r.  Fletcher,  8 
Oregon  367.  In  construing  a  pleading  a  more  technical  rule 
will  be  applied,  and  an  allegation  that  the  instrument  was  duly 
protested  will  not  be  held  to  comprehend  an  averment  that  notice 
of  dishonor  was  given  to  the  indorser.    Cook  v.  Warren,  88  N.  Y.  37. 

§  112.  When  notice  is  dispensed  with. —  Notice  of  dis- 
honor is  dispensed  with  when,  after  the  exercise  of  reason- 
able diligence,  it  cannot  be  given  to  or  does  not  reach  the 
parties  to  be  charged  (a). 

(a)  Ilobbs  V.  Straine,'l49  Mass.  212;  Staylor  v.  Ball,  24  Md.  183. 
Reasonable  diligence  is  all  that  is  required.  The  law  does  not 
exact  every  possible  exertion  which  might  have  been  made  to  effect 
notice  of  the  dishonor  of  the  paper.  Bank  of  Port  Jefferson  v. 
Darling,  01  Ilun.  236.  But,  as  said  by  Tx)rd  Ellenborougb,  the 
holder  cannot  allow  himself  to  remain  "  in  a  state  of  passive  and 


I02  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

contented  ip,-norance."  ]jatcman  v.  Joseph,  2  Canipb.  401.  What 
is  reasonable  diligence  will  depend  upon  the  circumstances  of  each 
case.  What  would  be  sufficient  in  one  case  might  fall  short  in 
another.  Ilowland  v.  Adrian,  29  N.  J.  Law,  41.  And  any  mode 
of  inquiry  will  be  sufficient  which  under  the  circumstances  of  the 
case  evinces  reasonable  diligence.  Hartford  Bank  v.  Stedman,  3 
Conn.  494.  But  bare  reliance  upon  a  directory  is  not  suf- 
ficient. Bacon  V.  Ilanna,  137  N.  Y.  379,  382.  In  the  case 
last  cited,  the  court  said :  "  Merely  looking  into  a  directory  is  not 
enough.  The  sources  of  error  in  that  process  are  too  many  and 
too  great.  Such  books  are  accurate  enough  in  a  general  way,  and 
convenient  as  an  aid  or  assistance,  but  they  are  private  ventures, 
created  by  irresponsible  parties,  and  depending  upon  information 
gathered  as  cheaply  as  possible  and  by  unknown  agents.  Their 
help  may  be  invoked,  but,  as  was  said  in  Lawrence  v.  Miller,  16 
N.  Y.  231,  their  error  may  excuse  the  notary,  but  will  not  charge  the 
defendant.  Merely  consulting  them  should  not  be  deemed 
'  the  best  information  obtained  by  diligent  inquiry.'  Greenwich 
Bank  v.  DeGroot,  7  Hun,  210;  Baer  v.  Leppert,  12  Hun,  516." 
If  the  holder  is  ignorant  of  the  address  he  should  apply  to  the 
other  parties  to  the  instrument  for  information.  University  Press 
V.  Williams,  48  App.  Div.  (N.  Y.)  190.  When  a  notary  is  em- 
ployed, it  is  the  duty  of  the  holder  to  inform  him  of  the  indorser's 
place  of  residence;  and  if  this  be  omitted,  the  notary  ought  to 
apply  to  all  the  parties  to  the  instrument  for  information,  and 
especially  to  the  holder  himself.  Hill  v.  Farrell,  3  Greenleaf,  233; 
Haly  V.  Brown,  5  Pa.  St.  178,  182;  Tate  v.  Sullivan,  30  Md.  464; 
Staylor  v.  Ball  &  Williams,  24  Md.  183.  But  as  the  duty  to  give 
notice,  and  therefore  the  duty  of  due  diligence  to  discover  the 
residence  of  the  indorser,  arises  subsequently  to  the  dishonor  of 
the  note,  it  is  not  an  element  of  due  diligence  that  the  owner 
should  previously  have  communicated  his  knowledge  of  the  in- 
dorser's residence  to  the  holder  for  collection.  Bartlett  v.  Isbell, 
31  Conn.  297.  Where  it  does  not  appear  that  the  residence  of 
the  indorser  has  been  changed  previously  to  the  time  of  sending 
the  notice,  it  will  be  presumed  that  there  has  been  no  change  of 
residence  U))  to  that  time.  Mohlman  Co.  v.  McKane,  60  App.  Div. 
546  (a  case  arising  under  the  statute).  Where  the  facts  are  un- 
disputed the  question  of  due  diligence  in  seeking  to  give  notice 
of  dishonor  is  for  the  court.    Haly  i'.  Brown,  5  Pa.  St.  178. 

§  113.     Delay  in  giving  notice  ;  how  excused. —  Delay  in 


NOTICE    OF    DISllO-XOR.  IO3 

giving  notice  of  dishonor  is  excused  when  the  delay  is  caused 
by  circumstances  beyond  the  control  of  the  holder  and  not 
imputable  to  his  default,  misconduct  or  negligence.  When 
the  cause  of  delay  ceases  to  operate,  notice  must  be  given 
with  reasonable  diligence  (a). 

(a)  111  ^lartiu  v.  Ingersoll  (8  Pick.  1)  the  delay  was  caused  by 
the  fact  that  duriiif^-  the  Christmas  holidays  vessels  were  not  allowed 
to  clear  from  Havana:  Held,  that  during  the  continuance  of  the 
holidays  it  was  not  necessary  to  write  a  notice  of  the  dishonor  of 

a  bill. 

§  114. — When  notice  need  not  be  given  to  drawer. — 
Notice  of  dishonor  is  not  required  to  be  given  to  the 
drawer  in  either  of  the  following  cases : 

1.  Where  tlie  drawer  and  drawee  are  the  same  person  (a)  ; 

2.  When  the  drawee  is  a  fictitious  person  or  a  person  not 
having  capacity  to  contract ; 

3.  \\'hen  the  drawer  is  the  person  to  whom  the  instru- 
ment is  presented  for  payment ; 

4.  \\'here  the  drawer  has  no  right  to  expect  or  require 
that  the  drawee  or  acceptor  will  honor  the  instrument  (b)  ; 

5.  Where  the  drawer  has  countermanded  payment. 

(a)  Roach  i'.  Ostler,  1  Man.  &  Ry.  120;  Planters'  Bank  v.  Evans, 
36  Tex.  592 ;  Chicago,  etc.,  R.  R.  Co.  v.  West,  37  Ind.  211.  When 
the  drawer  and  the  drawee  are  the  same  in  contemplation  of  law, 
the  rule  applicable  to  such  draft  is,  that  in  legal  operation  it  is 
regarded  as  a  promissory  note,  payable  on  demand,  and  the  maker 
thereof  is  not  entitled  to  notice.  Bailey  v.  Southwestern  R.  R. 
Bank,  11  Fla.  266.  Notice  is  not  required  to  render  a  firm  liable 
where  all  the  members  of  the  firm  are  members  of  the  house  which 
drew  the  bill.     West  Branch  Bank  v.  Fulner,  3  Pa  St.  399. 

(h)  Life  Insurance  Company  v.  Pendleton.  112  U.  S.  708;  Wol- 
lenweber  v.  Ivcttorlinn,  17  Pa.  St.  389.  Althoudi  the  drawer  has 
no  funds  in  the  hands  of  the  drawee,  yet  if  he  has  a  right  to 
expect  to  have  funds  in  the  hands  of  the  drawee  to  meet  the  bill, 
or  if  he  has  a  right  to  expect  the  bill  to  be  accepted  by  the  drawee 
in  consequence  of  an  agreement  or  an  arrangement  with  him,  or 


104  THE    NEGOTIAlil.K    INSTRUMENTS    LAW. 

if  upon  taking  up  the  bill  he  would  be  entitletl  to  sue  the  di'awee 
or  any  other  party  to  the  bill,  then  in  every  such  ease  he  is  entitled 
to  strict  notice  of  dishonor.     Pitts  v.  Jones,  9  Fla.  519. 

§  115.     When  notice  need  not  be  given  to  indorser. — 

Notice  of  dishonor  is  not  required  to  be  given  to  an  indorser 
in  either  of  the  following  cases  : 

1.  Where  the  drawee  is  a  fictitious  person  or  a  person 
not  having  capacity  to  contract,  and  the  indorser  was  aware 
of  the  fact  at  the  time  he  indorsed  the  instrument  (a)  ; 

2.  Where  the  indorser  is  the  person  to  whom  the  instru- 
ment is  presented  for  payment  (b)  ; 

3.  Where  the  instrument  was  made  or  accepted  for  his 
accommodation  (c). 

(a)   See  note  to  section  9. 

{h)  In  re  Swift,  106  Fed.  Rep.  G5  (a  case  arising  under  the 
statute). 

(c)   French  v.  Bank  of  Columbia,  4  Cranch,  141;  Ross  v.  Bedell, 

5  Duer,  402;  Blenderman  v.  Price,  50  N.  J.  L.  290;  Torrey 
V.  Frost,  40  Me.  74.  Where  one,  as  indorser,  procures  the  note  of 
another  to  be  discounted  by  a  bank  for  his  credit,  and  at  the  time 
the  discount  is  effected  makes  a  distinct  promise  to  the  bank  to 
pay  the  note  at  maturity,  his  liability  is  absolute,  not  conditional, 
and  protest  and  notice  of  non-payment  arc  unnecessary.  Sieger  v. 
Second  Kational  Bank,  132  Pa.  St.  307. 

§  116.  Notice  of  non-payment  where  acceptance  re- 
jused. — Where  the*  notice  of  dishonor  by  non-acceptance 
lias  1)een  given,  notice  of  a  subsequent  dishonor  by  non-pay- 
ment is  not  necessary,  unless  in  the  mean  time  the  instru- 
ment has  been  accepted  (a). 

(a)  Do  la  Torre  v.  Barclay,  1  Stark.  308;  Campbell  v.  French, 

6  T.  R.  200. 

§  117.  Effect  of  omission  to  give  notice  of  non- 
acceptance. — An  omission  to  give  notice  of  dishonor  by 

*  Error  in  engrossing.     Should  be  "  due." 


DISCHARGE    OF     XE(J(n  lAI'.l.l-:     IXSTRU  .M  liXTS.  I05 

non-acceptance  does  not  prejudice  the  rights  of  a  holder  in 
due  course  subsecjuent  t(j  the  omission  (a). 

(a)  Thu  Wisconsin  Act  contains  the  foHowin;^  additional  pro- 
vision :  "  But  this  shall  not  be  construed  to  revive  any  liability  dis- 
charged by  such  omission." 

§  118.  When  protest  need  not  be  made;  when  must 
be  made. — Where  any  negotiable  instrument  has  been  dis- 
honored it  may  be  protested  for  non-acceptance  or  non- 
payment, as  the  case  may  be;  but  protest  is  not  required, 
except  in  the  case  of  foreign  bills  of  exchange  (a). 

(a)  Bay  v.  C'liurdi,  15  Conn.  129;  L,ey;g  r.  \'inal,  h>'>  .Mass.  555; 
Tal^  V.  Sullivan,  W  Md.  464;  Weems  v.  Farmers'  Bank,  15  Md. 
231 ;  Ricketts  v.  Pendleton,  14  Md.  320 ;  Sumner  v.  Kimball,  2  Wis. 
524;  Stephenson  v.  Dickson,  24  Pa.  St.  148.  AVhilc  protest  is  not 
necessary,  except  in  case  of  foreign  bills,  it  is  very  convenient  in  all 
cases,  because  it  affords  the  easiest  and  most  certain  method  of 
proving  the  fact  of  dishonor  and  the  notice  to  the  indorsers.  Un- 
der the  statutes  of  nearly  all,  if  not  all  of  the  States,  the  certificate 
of  the  notary  making  the  protest  is  prima  facie  evidence  of  these 
facts.  As  to  what  are  foreign  bills,  see  section  129.  For  other 
provisions  relative  to  protest,  see  sections  152-100. 


ARTICLE  VIII.* 

Discharge  of  Negotiable  Instruments. 

Section  i  19.   Instrument;  how  discharged. 

T20.   When  i)crson  secondarily  liable  on,  discharged. 
I  _'  I .   Right  of  party  who  discharges  instrument. 

*  Tlic  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of 
Columbia,  Florida,  Massachusetts.  North  Carolina.  North  Dakota. 
Oregon,  Tennessee,  lUah,  Virginia  and  Washington,  1 19-125;  New 
York,  200-206;  Maryland,  127-133;  Rhode  Island,  127-133;  Wisconsin. 
1679-1679-6. 


106  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Section  122.  Renunciation  by  holder. 

123.  Cancellation;  unintentional;  burden  of  proof. 

124.  Alteration  of  instrument;  effect  of. 

125.  What  constitutes  a  material  alteration. 

§  119.  Instrument  ;  how  discharged.* — A  negotiable 
instrument  is  discharged : 

1.  By  payment  (a)  in  due  course  by  or  on  behalf  of  the 
principal  debtor  (b)  ; 

2.  By  payment  in  due  course  by  the  party  accommodated, 
where  the  instrument  is  made  or  accepted  for  accommoda- 
tion ; 

3.  By  the  intentional  cancellation  thereof  by  the  holder 

(0; 

4.  By  any  other  act  which  will  discharge  a  simple  contract 
for  the  payment  of  money  (d)  ; 

5.  When  the  principal  debtor  becomes  the  holder  of  the 
instrument  at  or  after  maturity  in  his  own  right  ((?). 

(a)  The  possession  of  a  bill  of  ex!thange  by  the  acceptor  after 
it  has  been  in  circulation  is  prima  facie  evidence  that  it  has  been 
paid  by  him.  Baring  v.  Clark,  19  Pick.  220.  So  the  possession 
of  a  promissory  note  by  the  maker.  First  Nat.  Bank  v.  Harris, 
7  Wash.  139;  Perez  v.  Bank  of  Key  West,  36  Fla.  467.  But  see 
Miller  v.  Ki-eiter,  76  Pa.  St.  78 ;  Eckert  v.  Cameron,  7  Wright,  120. 
When  the  holder  of  a  bill  of  exchange,  accepted  for  the  accommo- 
dation of  the  drawer,  sends  it  to  a  bank  for  collection,  and  the  bank, 
when  the  bill  comes  to  maturity,  pays  the  amount  thereof  to  the 
credit  of  the  holder,  this  is  not  such  a  payment  as  discharges 
the  acceptor ;  but  the  bank  succeeds  to  the  rights  of  the  holder,  and 
may  maintain  an  action  on  the  bill  against  the  acceptor.  Pacific 
Bank  V.  Mitchell,  9  Met.  297. 

(h)  A  payment  made  to  the  holder  of  a  promissory  note  by  an 
indorser,  not  as  agent  for  the  maker,  but  simply  in  discharge  of 
his  obligation  as   indorser,  where  the  note  was  executed  by  the 


*  Through  an  error  in  engrossing  the  words  in  the  headnote  have 
been  transposed.  It  was  intended  to  read.  "  How  instrument  dis- 
charged."   The  error  was  not  corrected  by  Laws  N.  Y.  1898,  ch.  336. 


DISCHARGE    OF     NEGOTIAULL;     INSTKLMEXTS.  lO/ 

maker  for  value,  does  not  enure  to  the  benefit  of  the  latter,  and  in 
an  action  upon  the  note  he  is  liable  for  the  whole  amount  thereof, 
notwithstaiidinfi:  the  jjaj-ment.  ^Madison  Square  liank  i'.  Pierce, 
137  N.  Y.  444.  In  the  case  cited  it  was  said:  "  T(j  the  extent  of 
the  money  paid,  the  indorser  becomes  equitably  entitled  to  be  sub- 
stituted to  the  rights  and  remedies  of  the  holder,  and  becomes, 
pro  tanto,  the  beneficial  owner  of  the  debt;  so  that  the  maker's 
obligation  to  pay  the  note  in  full,  at  first  due  to  the  holder  solely 
in  his  own  right,  becomes,  after  the  part  payment  by  the  indorser, 
still  wholly  due  to  the  holder,  but  partly  in  his  own  right  and 
partly  as  trustee  for  the  indorser.  A  court  of  law  cannot  split 
the  note  into  parts,  and  must  act  upon  the  legal  interest  and 
ownership."  For  cases  where  payment  made  by  person  secondarily 
liable,  see  section  121. 

(.c)   See  section  123. 

{d)  Thus,  the  release  of  one  joint  maker  will  operate  to  dis- 
charge the  other  joint  parties.  Crawford  v.  Roberts,  8  Oregon  324. 
But  to  have  this  effect  the  release  must  be  under  seal.  Shaw  v. 
Pratt,  22  Pick.  305. 

(e)  lie  must  become  the  holder  in  the  same  right  in  which  he 
executed  the  instrument.  If  he  should  become  the  holder  in  a 
representation  capacity,  for  example,  as  executor,  the  instrument 
would  not  be  discharged.  Nash  v.  DeFreville  (1900),  2  Q.  B.  72. 
See  section  50. 


§  120.  When  persons  secondarily  liable  on,  dis- 
charged.— A  person  secondarily  liable  on  the  instrument  is 
discharged : 

1.  By  any  act  which  discharges  the  instrtiment ; 

2.  By  the  intentional  cancellation  of  his  signature  by  the 
holder ; 

3.  By  the  discharge  of  a  prior  party  (a)  ; 

4.  Bv  a  valid  tender  of  payment  made  bv  a  prior  party 
ih);    ' 

5.  By  a  release  of  the  principal  debtor,  unless  the  holder's 
right  of  recourse  against  the  party  secondarily  liable  is  ex- 
pressly reserved  (c)  ; 

6.  By  any  agreement  binding  upon  the  holder  to  extend 
the  time  of  payment  or  to  postpone  the  liokler's  right  to 


I08  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

enforce  the  instrument  (d),  unless  made  with  the  assent 
of  the  party  secondarily  liable,  or  unless  the  right  of  re- 
course against  such  party  is  expressly  reserved  (<?). 

(a)   Shutts  V.  Fingar,  100  N.  Y.  539 ;  Couch  v.  Waring,  9  Conn. 
261;  Gennis  v.  Weighley,  114  Pa.  St.  194.     It  is  a  general  rule  that 
whatever  discharges  the  maker  or  acceptor  discharges  the  drawer 
and  indorser,  who  are  sureties,  for  the  contract  which  they  under- 
took to  assume  thus  passes  out  of  existence  by  the  act  of  the  bene- 
ficiary.    And  whatever  discharges  a  prior  indorser  discharges  ah 
subsequent  indorsers,  for  the  reason  that  he  stood  between  them 
and  the  holder,  and  on  making  pajanent  each  one  could  have  had 
recourse  against  him,  but  from  which  his  discharge  precludes  them. 
The  contracts  of  the  parties  are  said  to  be  like  the  links  of  a 
pendant  chain ;  if  the  holder  dissolves  the  first,  every  link  falls  with 
it.     Shutts  V.  Fingar,  supra.     But  this  rule,  of  course,  does  not 
apply  where  a  prior  party  has  been  discharged  by  the  laches  of  the 
intermediate  indorser;  for  the  holder  need  give  notice  only  to  his 
immediate  indorser.     West  Eiver  Bank  r.  Taylor,  34  N.  Y.  128, 
131.     And  after  the  responsibility  of  an  indorser  has  been  fixed 
no  act  or  dealing  of  the  holder  with  the  maker  will  discharge  the 
indorser,  except  it  be  such  an  act  as  will  defeat,  impair  or  delay 
the  right  of  the  indorser,  on  paying  the  note,  to  recover  against 
the  maker.     Farmers'  Bank  v.   Sprigg,   11   Md.   390.     Where  the 
holder  of  a  note,  with  several  indorsers  in  blank,  sues  the  maker 
and  writes  over  the  name  of  the  first  indorser  an  order  to  pay 
to  himself,  the  holder,  but  without  striking  out  the  names  of  the 
subsequent   indorsers,   he   does   not   thereby   discharge   them,   and 
therefore  one  of  them  who  pays  the  amount  of  the  note  to  the 
holder   may   sue   any   of   the   prior   parties.     Cole   v.    Gushing,    8 
Pick.  48.     An  indorser  is  discharged  where  the  holder  has  allowed 
the  statute  of  limitations  to  run   against  the  maker.     Shutts   v. 
Fingar,  100  N.  Y.  539. 

(h)  Spurgeon  v.  Smiths,  114  Ind.  453.  In  the  Wisconsin  Act 
the  following  is  added:  "  4n.  By  giving  up  or  applying  to  other 
purposes  collateral  security  applicable  to  the  debt,  or,  there  being 
in  the  holder's  hands  or  within  his  control  the  means  of  complete 
or  partial  satisfaction,  the  same  are  applied  to  other  purposes." 

(c)  By  an  express  reservation  of  the  holder's  rights  against  the 
drawer  or  indorsers,  their  rights  against  the  maker  or  acceptor 
are  reserved   by   implication.     Gloucester  Bank   v.   Worcester,   10 


DlSClIAKCiE    OF     NEGOTIABLE     IXSTRT  ME.NTS.  IO9 

Pick.  528;  Tombeckbe  Bank  v.  Stratton,  7  Wend.  429;  Stewart  v. 
Eden,  2  Cai.  121.  The  giving  of  a  judgment  or  other  security  by 
the  maker  or  a  prior  indorser  does  not  discharge  a  subsequent  in- 
dorsee First  Nat.  Bank  v.  Peltz,  17G  Pa.  St.  513;  Guarantee  Co. 
V.  Craig,  155  Pa.  St.  343. 

(d)  Any  extension,  no  matter  how  short,  by  a  valid  agreement, 
will  discharge  the  indorser  or  surety.     Cary  v.  White,  52  N.  Y.  138; 
Nightingale  v.  Meginnis,  34  N.  J.  Law,  461;  Siebeneck  v.  Anchor 
Savings  Bank.   Ill  Pa.   St.  187;   In  re  Bishop's  Estate,  195  Pa. 
St.   85;    Eridenberg   v.   Kobinson,   14  Fla.   130.     But  there   must 
be    an   enforcible    agreement    to    this    effect,    either    expressed    or 
implied.       (/(/.)       Ordinarily    the    taking    of    a    new    note    from 
the   debtor,   payable  at  a  future  day,   suspends   the   right  of   ac- 
tion  upon   the   original   demand   until   the   maturity   of   the   new 
note,  and  hence  discharges  a  non-assenting  surety.     Hubbard   v. 
Gurney,  64  N.  Y.  450;  Place  v.  Mcllvain,  38  N.  Y.  960;  Eriden- 
berg V.  Robinson,  14  Ela.  130.     But  when  the  new  security  is  pay- 
able on  demand  no  presumption  arises  of  an  agreement.     Board 
of  Pxlucation  v.  Eonda,  77  N.  Y.  350,  362.     And  where  new  security 
is  taken  merely  as  collateral,  the  fact  that  the  collateral  may  not 
be  enforcible  until  a  definite  time  in  the  future  does  not  operate 
to  extend  the  time  of  payment  of  the  principal  debt  or  suspend  the 
right  to  sue  on  the  original  security.     Ealkill  National  Bank  v. 
Sleight,  1  App.  Div.   ls!t.  191;  United   States  v.  Hodge,  6  How. 
(T".  S.)   279.     Mere  indulgence  to  the  maker  or  acceptor  will  not 
discharge  a  drawer  or  indorser;  there  must  be  an  agreement  to 
extend  the  time  of  payment  binding  upon  the  holder.     Smith  v. 
Erwin,  77  N.  Y.  466;  Bank  of  Utica  i-.  Ives,  17  Wend.  501;  Craw- 
ford V.  Millspaugh,  13  Johns.  87;  Lockwood  i'.  Crawford,  18  Conn. 
376;  Eridenberg  v.  Robinson,  14  Ela.  130.     And  for  this  purpose 
the  contract  must  be  supported  by  a  valid  consideration.     Cary  v. 
White,  52  N.  Y.  138.     A  part  payment  by  the  maker  is  not  such  a 
consideration,  Halliday  v.  Hart,  30  N.  Y.  474;  nor  is  an  agreement 
to  pay  interest,  since  it  is  merely  a  promise  to  do  what  the  party 
is  already  bound  to  do.     Wilson  v.  Powers,  130  Mass.  127 ;  Stuber  v. 
Scliack,  83  111.  192.     An  indorser  is  not  discharged  by  extending 
the  maker's  time  to  answer.     German-Am.  Bank  v.  Niagara  Cycle 
Co.,  13  App.  Div.  450.     The  ground  upon  which  an  agreement  to 
give  time  to  the  maker,  made  by  the  holder  without  the  consent 
of  the  indorsers,  upon  a  valid  consideration,  is  held  to  be  a  dis- 
charge  of  the   indorsers,   is   solely   this,   that   the  holder   thereby 


IIO  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

impliedly  stipulates  not  to  pursue  the  indorscrs,  or  to  seek  satis- 
faction from  them  in  the  intermediate  period.  It  can  never  apply 
to  any  case  where  a  contrary  stipulation  exists  between  the  parties. 
Hence,  if  the  agreement  for  delay  expressly  saves  and  reserves  the 
rights  of  the  holder  in  the  intermediate  time  against  the  indorsers, 
it  will  not  discharge  the  latter.  In  such  case  the  very  ground  of 
the  objection  is  removed,  for  their  rights  are  not  postponed  against 
the  maker  if  they  should  take  up  the  note.  Hagey  v.  Hill,  75 
Pa.  St.  108,  111.  The  burden  of  showing  that  the  indorser  as- 
sented to  such  extension  of  time  is  on  the  party  seeking  to  charge 
him.  Siebeneck  v.  Anchor  Savings  Bank,  111  Pa.  St.  187.  It  has 
been  held  that  time  given  to  an  indorser  will  not  discharge  an 
accommodation  maker.  Delaware  County  Trust  Co.  v.  Title  Ins. 
Co.,  199  Pa.  St.  17.  The  statute  has  not  changed  this  rule.  See 
Sec.  192. 

(e)  Wagman  v.  Hoag,  14  Barb.  23.3,  239;  Eockville  National 
Bank  V.  Holt,  58  Conn.  526 ;  Bank  v.  Simpson,  90  N.  C.  469 ;  Minir 
V.  Crawford,  L.  K.  2  Scotch  Appeals,  456;  Kenworthy  v.  Sawyer, 
125  Mass.  28 ;  Morse  v.  Huntington,  40  Vt.  488 ;  Hagey  v.  Hill,  75 
Pa.  St.  108.  In  the  Wisconsin  Act,  for  subdivision  6  the  follow- 
ing is  substituted :  "  By  an  agreement  binding  upon  the  holder  to 
extend  the  time  of  payment,  or  to  postpone  the  holder's  right  to 
enforce  the  instrument  unless  made  with  the  assent,  prior  or  sub- 
sequent, of  the  party  secondarily  liable,  unless  the  right  of  recourse 
against  such  party  is  expressly  reserved,  or  unless  he  is  fully 
indemnified." 


§  121.  Right  of  party  who  discharges  instrument. — 
Where  the  instrument  is  paid  by  a  party  secondarily  liable 
thereon,  it  is  not  discharged;  but  the  party  so  paying  it  is 
remitted  to  his  former  rights  as  regards  all  prior  parties, 
and  he  may  strike  out  his  own  and  all  subsequent  indorse- 
ments, and  again  negotiate  the  instrument  (a),  except: 

1.  Where  it  is  payable  to  the  order  of  a  third  person, 
and  has  been  paid  by  the  drawer ;  and 

2.  Where  it  was  made  or  accepted  for  accommodation, 
and  has  been  paid  by  the  party  accommodated  (&). 

(a)  Where  an  indorser  takes  up  the  instrument,  after  it  has  been 


DISCHARGE    OF    NEGOTIABLE     INSTRUMENTS.  Ill 

dishonored,  by  paying  the  amount  of  it  to  the  holder,  the  transac- 
tion is  in  effect  a  repurchase  of  the  paper,  and  not  a  payment  of 
it,  and  the  indorser  becomes  vested  again  with  all  the  rights  which 
he  formerly  had  against  prior  parties.  French  v.  Jarvis,  29  Conn. 
347.  And  the  paper  retains  its  negotiable  character.  Gould  v. 
Eager,  17  Mass.  615;  Davis  v.  Miller,  14  Gratt.  1.  And  although 
in  the  case  of  accommodation  paper  the  indorsee  may  not  pay 
actual  value  at  the  time  of  his  indorsement,  yet  if  he  pays  the 
instrument  and  gets  possession  of  it  he  is  deemed  a  holder.  Rein- 
hart  V.  Schall,  G9  Md.  352.  It  is  necessary  to  strike  out  all  sub- 
sequent indorsements;  for  after  the  paper  has  once  been  paid  it 
cannot  be  negotiated  again  if  such  negotiation  would  make  any 
of  the  parties  liable  who  would  otherwise  be  discharged.  Goodner 
V.  Maynard,  7  Allen,  45G;  Citizens'  Bank  v.  Say,  80  Va.  436.  And 
by  putting  the  note  in  circulation  again  the  liability  of  subse- 
quent parties  is  not  revived.  Davis  v.  ]\rillcr,  14  Gratt.  1.  A 
note  coming  into  the  hands  of  the  maker  under  such  circumstances 
as  to  raise  a  presumption  of  its  payment  cannot  be  pledged  by  him 
as  collateral  so  as  to  bind  a  surety,  although  the  not©  may  not 
have  matured  at  the  time  of  its  re-issue.  First  National  Bank  v. 
Harris,  7  Wash.  139.  Where  payment  is  made  by  the  second  in- 
dorser, the  case  is  within  the  provisions  of  the  section.  Twelfth 
Ward  Bank  v.  Brooks,  63  App.  Div.  220.    See  Sec.  119. 

(6)  Cottrell  V.  Watkins,  89  Va.  801.  ^^^lere  the  instrument  is 
paid  by  an  accommodation  acceptor  it  is  discharged,  and  becomes 
commercially  dead,  but  is  evidence  in  the  hands  of  the  payer  to 
charge  the  real  debtor.  First  Nat.  Bank  v.  ]\raxficld,  83  Me.  576. 
So,  where  one  of  several  accommodation  makers  pays  the  note, 
it  remains  in  his  hands  evidence  of  his  right  to  contribution  from 
his  co-sureties.  This  right  may  be  assigned  by  him,  and  the  deliv- 
ery of  the  note  by  him  to  a  third  person  for  a  valuable  considera- 
tion raises  a  presumption  of  an  intention  to  pass  this  right  to 
the  transferee.  Dillenbeck  v.  Bygert,  97  N.  Y.  303.  Where  an 
accommodation  indorser  for  the  payee  has  paid  the  note  he  may 
recover  the  amount  of  an  accommodation  maker.  Laubach  v. 
Pursell,  35  N.  J.  Law,  434.  And  where  a  second  indorser  of  a 
note  has  paid  and  taken  it  up  he  becomes  a  holder  for  value,  and 
may  maintain  an  action  to  recover  the  amount  thereof  of  the  first 
indorser,  although  both  are  accommodation  indorsers.  Kelly  v. 
Burroughs,  102  N.  Y.  93.  See  also  Kaschncr  v.  Conldin,  40 
Conn.  81.    See  Sec.  68. 


112  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  122.  Renunciation  by  holder. — The  holder  may  ex- 
pressly renounce  his  rights  against  any  party  to  the  instru- 
ment, before,  at  or  after  its  maturity.  An  absolute  and 
unconditional  renunciation  of  his  rights  against  the  princi- 
pal debtor  made  at  or  after  the  maturity  of  the  instrument, 
discharges  the  instrument.  But  a  renunciation  does  not 
affect  the  rights  of  a  holder  in  due  course  without  notice.  A 
renunciation  must  be  in  writing,  unless  the  instrument  is  de- 
livered up  to  the  person  primarily  liable  thereon. 

§  123.     Cancellation  ;   unintentional ;   burden  of  proof. 

— A  cancellation  made  unintentionally,  or  under  a  mistake, 
or  without  the  authority  of  the  holder,  is  inoperative;  but 
where  an  instrument  or  any  signature  thereon  appears  to 
have  been  canceled  the  burden  of  proof  lies  on  the  party 
who  alleges  that  the  cancellation  was  made  unintentionally, 
or  under  a  mistake  or  without  authority. 

§  124.  Alteration  of  instrument  ;  effect  of. — Where  a 
negotiable  instrument  is  materially  altered  without  the  assent 
of  all  parties  liable  thereon,  it  is  avoided,  except  as  against 
a  party  who  has  himself  made,  authorized  or  assented  to 
the  alteration  and  subsequent  indorsers  (a).  But  when  an 
instrument  has  been  materially  altered  and  is  in  the  hands  of 
a  holder  in  due  course,  not  a  party  to  the  alteration,  he  may 
enforce  payment  thereof  according  to  its  original  tenor  (b). 

(a)  See  Jeffreys  v.  Eosenfeld,  (Mass.)  Gl  N.  E.  Rep.  49,  where 
the  effect  of  this  provision  was  discussed,  but  not  decided. 
The  burden  of  explaining  an  apparent  alteration  is  upon 
the  party  producing  the  paper,  (lowdey  v.  Robbins,  3  App.  Div. 
353;  Town  of  Solon  v.  Williamsburgh  Savings  Bank,  114  N.  Y. 
122,  135;  Simpson  v.  Davis,  119  Mass.  269;  Gettysburg  National 
Bank  v.  Chisolm,  169  Pa.  St.  564;  Citizen's  Nat.  Bank  v.  Will- 
iams, 174  Pa.  St.  66;  Paine  v.  Kdsell,  19  Pa.  St.  178.  If  the  paper 
appears  to  have  been  altered  he  must  explain  this  appearance;  but 
if,  on  the  other  hand,  however  material  in  fact  the  alteration  may 
be,  there  is  upon  the  face  of  the  paper  no  evidence  or  mark  raising 


DISCHARGK    OK     NEGOTIABLE    INSTRUMENTS.  II3 

a  suspicion  thereof,  tlic  liolder  is  not  called  upon  to  make  an  ex- 
planation or  to  introduce  any  testimony  until  the  alteration  has 
been  shown  by  sufficient  evidence  outside  of  the  paper.  Harris  v. 
The  Bank  of  Jacksonville,  20  Fla.  501.  512. 

(h)  Willis  V.  Wilson,  3  Oregon  308.  This  changes  the  law  in  some 
States.  Prior  to  the  statute  the  rule  in  many  jurisdictions  w-as  that 
where  the  alteration  was  made  without  the  consent  of  the  party 
sought  to  be  charged,  there  could  be  no  recovery  even  by  an  inno- 
cent holder  for  value,  and  even  though  he  sought  to  recover  on  the 
instrument  as  it  was  before  the  alteration.  Gettysburg  National 
Bank  ;;.  Chisolm,  169  Pa.  St.  564;  Hartley  v.  Carboy,  150  Pa.  St. 
23;  Wood  v.  Steele,  6  Wall.  80;  Citizens'  National  Bank  v.  Kich- 
mond,  121  Mass.  110.  In  the  case  first  cited  it  was  said:  "In 
the  present  case  the  alteration  was  not  probably  made  by  an 
agent  of  the  payee,  and  it  was  entirely  without  the  knowledge 
and  consent  of  the  defendant,  who  w'as  the  maker  of  the  note. 
Of  course  the  payee  could  not  recover  on  the  note  for  any  amount, 
because  it  was  an  altered  instrument,  and  is  avoided  altogether 
by  public  policy.  Certainlj'  he  could  not  restore  life  to  it  by 
passing  it  over  to  an  indorsee."  But  compare  Gleason  v.  Hamilton, 
138  N.  Y.  353;  Town  of  Solon  v.  Williamsburgh  Savings  Bank, 
114  N.  y.  122,  134.  In  cases  of  mere  spoliation,  where  the  original 
tenor  was  apparent  upon  inspection,  it  has  been  held  sufficient 
to. declare  on  the  instrument  in  such  form,  and  upon  the  spoliation 
being  shown,  there  is  no  variance  between  the  allegation  and  the 
proof.  Drum  v.  Drum,  133  Mass.  566.  A  similar  rule  would  now 
seem  to  apply  where  there  was  proof  that  the  plaintiff  was  not  a 
party  to  the  alteration. 

§  125.     What  constitutes  a  material  alteration. — Any 
alteration  which  changes : 

1.  The  date  (a)  ; 

2.  The  sum  payable,  either  for  principal   (b)  or  interest 

(O; 

3.  The  time  (d)  or  place  (c)  of  payment; 

4.  The  niiniber  or  the  relations  of  the  parties  (/)  ; 

5.  The  medium  or  currency  in  which  payment  is  to  be 
made  (g) ; 

Or  which  adds  a  place  of  payment   where  no  place  of 
payment  is  specified   (/;),  or  any  other  cliange  or  addition 


114  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

which  alters  the  effect  of  the  instrument  in  any  respect,  is  a 
material  alteration  (i). 

(a)  National  Ulster  County  Bank  v.  Madden,  114  N.  Y.  280; 
Crawford  v.  West  Side  Bank,  100  N.  Y.  50,  5G;  Wood  v.  Steele, 
G  Wall.  80;  Newman  v.  King-  (Ohio),  43  N.  E.  Rep.  683. 

(b)  Batchelder  v.  White,  80  Va.  103.  This  is  so,  though  the 
amount  is  lessened,  as  where  $500  was  changed  to  $400.  Hewins  v. 
Cargill,  67  Me.  554. 

(c)  Gettysburg  National  Bank  v.  Chisolm,  169  Pa.  St.  564.  In 
this  case  the  words  "  with  interest  at  six  per  cent."  were  interlined. 

(d)  Rogers  v.  Vosburgh,  87  N.  Y.  208 ;  Weyman  v.  Yeomans,  84 
111.  403 ;  Miller  v.  Gilleland,  19  Pa.  St.  119. 

(e)  Tidmarsh  v.  Grover,  1  Maule  &  S.,  735;  Bank  of  Ohio  Valley 
V.  Lockwood,  13  W.  Va.  392. 

if)  Hoffman  v.  Planters'  Nat.  Bank,  (Va.)  39  S.  E.  Rep.  134  (a 
case  arising  under  the  statute).  In  McCaughey  v.  Smith,  27  N.  Y. 
39,  and  Brownell  v.  Winnie,  29  N.  Y.  400,  it  was  held  that  the  addi- 
tion of  another  name  as  maker,  where  there  was  but  one,  was  not 
a  material  alteration,  the  additional  maker  being  i-^garded  as  a 
guarantor.    The  statute  has  probably  changed  this  rule. 

(g)  Angle  v.  Insurance  Company,  92  U.  S.  330;  Church  v.  How- 
ard, 17  Hun,  5;  Darwin  v.  Rippey,  63  N.  C.  318;  Bogarth  v.  Breed- 
love,  39  Tex.  561.  Thus,  adding  to  a  note  the  words  "  in  gold 
coin"   is  a  material  alteration.     Wills   v.   Wilson,   3   Oregon  308. 

(h)  Whitesides  v.  Northern  Bank,  10  Bush,  501. 

(i)  Weyerhauser  v.  Dun,  100  N.  Y.  150.  Addition  of  special 
agreement.  In  some  States  it  has  been  held  that  the  addition  of 
the  name  of  an  attesting  witness  is  a  material  alteration.  Smith 
V.  Dniilinin,  8  Pick.  246;  Homer  v.  Wallis,  11  Mass.  310;  Thorn- 
ton V.  Appleton,  29  Me.  298;  Brackett  v.  Mountfort,  11  Me.  115. 
But  in  those  States  the  attestation  extends  the  liability  of 
the  maker  under  the  statute  of  limitations,  and  so  changes  to 
some  extent  the  nature  of  the  contract  and  enlarges  its  obliga- 
tions. In  other  States  where  such  addition  would  not  have  this 
effect  the  alteration  would  not  be  material.  Fuller  v.  Green,  64 
Wis.  159. 


BILLS  OF  exchange;   form  and  inteki'retation.     115 

CllAi'TER  J  I. 
BILLS  OF  EXCHANGE. 

ARTICLE  I.* 
Bills  of  Exchange;  Form  and  Interpretation. 

Section  126.   Bill  of  exchange  defined. 

127.  Bill  not  an  assignment  of  funds  in  hands  of 

drawee. 

128.  Bill  addressed  to  more  than  one  drawee. 

129.  Inland  and  foreign  bills  of  exchange. 

130.  When  bill  may  be  treated  as  promissorv  note. 

131.  Drawee  in  case  of  need. 

§  126.  Bill  of  exchange  defined.— A  bill  of  exchange 
is  an  unconditional  order  in  writing  addressed  by  one  per- 
son to  another,  signed  by  the  person  giving  it,  requiring  the 
person  to  whom  it  is  addressed  to  pay  on  demand  or  at  a 
fixed  or  determinable  future  time  a  sum  certain  in  money 
to  order  or  to  bearer. 

Jarvis  v.  Wilson,  46  Conn.  91. 

§  127.  Bill  not  an  assignment  of  funds  in  hands  of 
drawee. — A  l)il]  of  itself  does  not  operate  as  an  assign- 
ment of  the  funds  in  the  hands  of  the  drawee  available  for 
the  payment  thereof,  and  the  drawee  is  not  liable  on  the  bill 
unless  and  until  he  accepts  the  same  (a). 

(a)  Harris  r.  Clark,  3  N.  Y.  93;  Mandoville  v.  Welch,  5  Wheat. 
286;  Brill  v.  Tuttle.  81  K  Y.  454;  Alfier  r.  Scott.  54  N.  Y.  14; 
Munger  v.  ShaniKni,  61  N.  Y.  251;  Commonwealth  v.  Am.  Life  Ins. 
Co.  167  Pa.  St.  586;  Reilly  v.  Daly,  159  Pa.  St.  605;  Bailey  v.  South- 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut,  District  of 
Colunihia.  Florida.  Massachusetts.  North  Carolina.  North  Dakota.  Ore- 
gon. Tennessee,  Utah,  Virginia  and  Washington,  126-131  ;  New  York. 
210-215;  Maryland.  145-150;  Rhode  Island,  134-139;  Wisconsin.  1680- 
1680-6, 


Il6  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

western  R.  R.  Bank,  11  Fla.  266.  But  when,  for  a  valuable  con- 
sideration from  the  paj'ee,  the  order  is  drawn  upon  a  third  party 
and  made  paj'able  out  of  a  particular  fund,  then  due  or  to  become 
due,  from  him  to  the  drawer,  the  delivery  of  the  order  to  the 
payee  operates  as  an  assignment  irro  tanto  of  the  fund,  and  the 
drawee  is  bound,  after  notice  of  such  assignment,  to  apply  the 
fmid,  as  it  accrues,  to  the  payment  of  the  order  and  to  no  other 
purpose,  and  the  payee  may,  by  action,  compel  such  application. 
Brill  V.  Tuttle,  81  N.  Y.  454,  457.  An  intention  to  make  an 
assignment  of  the  funds  in  the  hands  of  the  drawee  may  be  in- 
ferred from  the  circumstances  attending  the  delivery  of  the  draft 
and  the  conduct  of  the  parties.  Throop  Grain  Cleaner  Co.  v. 
Smith,  110  N.  Y.  83. 

§  128.     Bill  addressed  to  more  than  one  drawee. — A 

Ijill  may  be  addressed  to  two  or  more  drawees  jointly, 
whether  they  are  partners  or  not ;  but  not  to  two  or  more 
drawees  in  the  alternative  or  in  succession  (a). 

(a)  In  the  Wisconsin  Act  the  words  "  or  succession"  are  omitted. 

§  129.  Inland  and  foreign  bills  of  exchange. — An  in- 
land bill  of  exchange  is  a  bill  which  is,  or  on  its  face  purports 
to  be,  both  drawn  and  payable  within  this  State.  Any  other 
bill  is  a  foreign  bill  (a).  Unless  the  contrary  appears  on  the 
face  of  the  bill,  the  holder  may  treat  it  as  an  inland  bill. 

(a)  Commercial  Bank  of  Kentucky  v.  Varnum,  49  N.  Y.  269; 
Life  Insurance  Company  v.  Pendleton,  112  U.  S.  696 ;  Armstrong  v. 
American  Ex.  National  Bank,  133  U.  S.  433;  Buckner  v.  Finley, 
2  Peters,  586;  Joseph  v.  Solomon,  19  Fla.  632;.  Phoenix  Bank  v. 
Hussey,  12  Pick.  483;  Thompson  v.  Commercial  Bank,  3  Caldw. 
49;  Union  Bank  v.  Fowlkes,  2  Sneed,  556. 

§  130.  When  bill  may  be  treated  as  promissory  note. 
— Where  in  a  bill  the  drawer  and  drawee  are  the  same  per- 
son, or  where  the  drawee  is  a  fictitious  person,  or  a  person 
not  having  capacity  to  contract,  the  holder  may  treat  the 
instrument,  at  his  option,  either  as  a  bill  of  exchange  or  a 
promissory  note  (a). 

(a)  See  section  17. 


ACCEPTANCE.  11/ 

§  131.  Referee  in  case  of  need.— The  drawer  of  a  bill 
and  any  indorser  may  insert  thereon  the  name  of  a  per- 
son to  whom  the  holder  may  resort  in  case  of  need,  that  is 
to  say,  in  case  the  bill  is  dishonored  by  non-acceptance  or 
non-payment  (a).  Such  person  is  called  the  referee  in  case 
of  need.  It  is  in  the  option  of  the  holder  to  resort  to  the 
referee  in  case  of  need  or  not  as  he  may  see  fit. 

(a)  The  usual  form  is :  "  In  case  of  need,  apply  to  Messrs.  C 
and  D,  at  E."     Chitty  on  Bills,  1G5. 


ARTICLE  II.* 
Acceptance. 

Section  132.  Acceptance,  how  made,  et  cetera. 

133.  Holder  entitled  to  acceptance  on  face  of  bill. 

134.  Acceptance  by  separate  instrument. 

135.  Promise  to  accept ,  when  equivalent  to  accept- 

ance. 

136.  Time  allowed  drawee  to  accept. 

137.  Liability   of   drawee   retaining-   or   destroying 

bill.  ' 

138.  Acceptance  of  incomplete  bill. 

139.  Kinds  of  acceptances. 

140.  What  constitutes  a  general  acceptance. 

141.  Oualihed  acceptance. 

142.  Rights  of  parties  as  to  qualified  acceptance. 


"^  The  numbers  of  the  sections  in  other  States  than  Pennsylvania  are 
as  follows :  Colorado,  Connecticut,  District  of  Columbia,  Florida.  Mas- 
sachusetts, North  Carolina,  North  Dakota.  Oregon.  Tennessee.  Utah, 
Virginia  and  Washington.  132-T42;  New  York,  220-230;  jMaryland,  151- 
161;  Rhode  Island,  140-150;  Wisconsin,  1680/-1680/'. 


Il8  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  132.  Acceptance  ;  how  made,  et  cetera. — The  ac- 
ceptance of  a  bill  is  the  signification  by  the  drawee''' 
to  the  order  of  the  drawer  ici).  The  acceptance  must 
be  in  writing-  and  signed  by  the  drawee  {b).  It  must  not 
express  that  the  drawee  will  perform  his  promise  by  any 
other  means  than  the  payment  of  money. 

(a)  The  acceptance  is  a  response  to  the  direction  contained  in 
the  bill,  and  the  language  of  the  bill  and  the  acceptance  are  but 
parts  of  one  entire  contract  in  writing.  Meyer  v.  Beardsley,  29 
K.  J.  Law,  236.  But  this  contract  is  regarded  as  a  new  contract. 
Superior  City  v.  Ripley,  138  U.  S.  93.  The  usual  mode  of  making 
an  acceptance  is  by  writing  the  word  "  accepted,"  and  subscrib- 
ing the  drawee's  name.  Byles  on  Bills,  190.  But  the  drawee's 
signature  alone  is  sufficient.  Spear  v.  Pratt,  2  Hill,  582 ;  Wheeler 
V.  Webster,  1  E.  D.  Smith,  1. 

(h)  1  Rev.  Stat.  X.  Y.  768,  section  6;  Laws  of  Pa.  1881,  17. 
The  English  Bills  of  Exchange  Act,  following  previous  English 
statutes  (1  and  2  George  IV.,  C.  78;  19  and  20  Victoria,  C.  78) 
requires  that  the  acceptance  be  written  on  the  bill.  The  Amer- 
ican statutes  do  not  generally  require  this;  and  such  a  require- 
ment would  sometimes  work  inconvenience.  Thus,  it  has  been  held 
that  a  bank  can  accept  a  check  bj-  telegraph,  and  such  an  ac- 
ceptance has  been  deemed  to  be  within  the  terms  of  a  statute 
requiring  acceptances  to  be  in  writing,  North  Atchison  Bank  v. 
Garretson,  51  Fed.  Rep.  167;  but  to  require  the  acceptance  to  be 
on  the  instrument  itself  would  preclude  the  giving  of  an  accept- 
ance by  telegraph  either  by  a  bank  or  by  any  other  drawee. 

§  133.     Holder  entitled  to  acceptance  on  face  of  bill. 

— The  holder  of  a  bill  presenting  the  same  for  acceptance 
may  require  that  the  acceptance  be  written  on  the  bill,  and  if 
such  request  is  refused,  may  treat  the  bill  a^  dishonored. 

1  Rev.  Stat.  N.  Y.,  section  9. 

§  134.  Acceptance  by  separate  instrument. — Where 
an  acceptance  is  written  on  a  paper  other  than  the  bill  itself, 
it  does  not  bind  the  acceptor,  except  in  favor  of  a  person  to 

*  Through  error  in  engrossing  the  words  "  of  his  assent  "  omitted  in 
Pennsylvania  statute. 


ACCKFTANCE.  1  Uj 

whom  it  was  shown  and  who,  on  the  faitli  thereof,  receives 
tlic  hill   for  value. 

1  Kev.  Stat.  N.  Y.,  7G8,  section  7. 

5?  135.  Promise  to  accept ;  when  equivalent  to  accept- 
ance.—  An  unconditional  promise  in  writing  (u)  to  accept 
a  hill  hefore  it  is  drawn  is  deemed  an  actual  acceptance  in 
fa\-or  of  every  person  who,  upori  the  faith  thereof,  receives 
the  l)ill    for  value    (b). 

J    (a)  All  absolute  authority  to  draw  is  equivalent  to  an   uncon- 
ditional promise  to  pay  the  draft  within   the  statute.       Ruiz  v. 
Kenauld,  100  N.  Y.  256;  Merchants'  ]iank  v.  Griswokl,  72  N.  Y. 
472,  479;  Barney  v.  Wortington,  37  N.  Y.  112.     The  promise  must 
be  unconditional.     Germania  National  Bank  v.  Tookc,  101  X.  Y. 
442;  Shover  r.  Western  Fnion  Telegraph  Co.,  57  N.  Y.  459,  463. 
But   restrictions   as   to   the   time   or   amount   do   not  prevent   the 
promise  from  being  treated  as  unconditional  and  absolute  as  to 
drafts  within  the  limitation.     Bank  of  ]\ricliigan  v.  Ely,  17  Wend. 
508;   Ulster  Co.  Bank   v.  McFarlan,  5  Hill,  432.     It  is  also  held 
that   an   authority   given    to    an    agent   to    draw    "  from    time   to 
time,  as  may  be  necessary  in  the  purchase  of  lumber,"  or  as  "you 
want  more  funds,"  operates  simply  as  an  instruction  to  the  agent, 
and  does  not,  as  to  persons  dealing  with  him  in  good  faith,  con- 
stitute a  condition.     Merchants'  Bank  v.  Griswokl,  72  N.  Y.  472; 
Bank  of  Michigan  i\  Ely,  17  Wend.  508.     The  party  dealing  with 
the  agent  may  rest  upon  his  representation,  express  or   implied, 
thai   the  draft   is  in  the  business  of  the  principal,  or  that  tlic  funds 
are  needed,   and  he  is  protected,  although   it    turns  out   that  the 
representation  is  false.     N.  Y.  &  N.  II.  R.  R.  Co.  v.  Schuyler,  34 
N.  Y.  30;  Merchants'  Bank  v.  Griswokl,  72  X.  Y.  472.     The  re- 
quirement that  the  promise  shall  be  in  writing  is  wholly  statutory. 
At  common  law  an  oral  promise  was  sufficient.     Dull    r.   Ih-icker, 
76  Pa.  St.  255;  Scuddcr  r.  Union  Nat.  Bank,  91  U.  S.  406;  William 
r.    Winans,   2   Gr.    (N.   J.)    239;    Jarvis    v.   Wilson,  46    Conn.    91. 
A  tclegrai)hic  authority  is  sufficient.     Johnson  v.  Clark,  39  N.  Y. 
216;  North  Atchison  Bank  v.  Garretson,  51  Fed.  Rep.  167;  Frank- 
lin Bank  v.   Lynch,  52  Md.  270.     As  to  countermanding  by  tele- 
graph an  offer  to  accept,  see  First  Nat.  Bank.  v.  Clark,  61    ^ifd. 
400.     A   promise  to   accept  is  governed  by  the  law  of  the   State 


s 


120  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

where  it  is  made  notwithstanding  it  is  to  be  performed  elsewhere. 
Scott  V.  Pilkington,  15  xibb.  Pr.  280. 

(h)  1  Rev.  Stat.  N.  Y.  768,  section  8;  Brown  v.  Ambler,  G6  Md. 
391.  Bnt  the  holder  mnst  acquire  the  bill  on  the  faith  of  the 
promise  to  accept.     Howland  v.  Carson,  15  Pa.  St.  453. 

§  136.  Time  allowed  drawee  to  accept. — The  drawee 
is  allowed  twenty-four  hours  after  presentment  in  which 
to  decide  whether  or  not  he  will  accept  the  bill  (a)  ;  l3Ut  the 
acceptance  if  given  dates  as  of  the  day  of  presentation  (b). 

(a)  See  Byles  on  Bills,  182 ;  Daniel  on  Neg.  Inst.,  section  492. 
By  the  former  statute  of  Massachusetts,  the  drawee  had  until  two 
o'clock  on  the  day  following.  (Public  Statutes,  1882,  Ch.  77,  sec- 
tion 17.) 

(h)  There  does  not  appear  to  be  any  direct  authority  on  this 
point;  the  rule  of  the  statute  conforms  to  what  is  the  common 
practice.     See  also  statute  of  Massachusetts  above  referred  to. 

§  137.     Liability   of    drawee    retaining   or   destroying 

bill. —  Where  a  drawee  to  whom  a  h\\\  is  delivered  for  ac- 
ceptance destroys  the  same,  or  reftises  within  twenty-four 
hours  after  such  delivery,  or  witliin  such  other  period  as  the 
holder  may  allow,  to  return  the  bill  accepted  or  non-accepted 
to  the  holder,  he  will  be  deemed  to  have  accepted  the 
same  (a). 

(a)  1  Rev.  Stat.  N.  Y.  769,  section  11.  The  refusal  referred 
to  in  the  statute  is  an  affirmative  act,  or  such  conduct  as  amounts 
to  an  affirmative  act;  and  mere  retention  of  the  bill,  without  a 
demand  for  a  return,  or  a  dissent  to  the  retention,  and  with  the 
permission  of  the  owner  is  not  an  acceptance.  Matteson  v.  Moul- 
ton,  79  N.  Y.  627.  In  the  Wisconsin  Act  the  following  words  are 
added:  "Mere  retention  of  the  bill  is  not  acceptance."  But  in 
view  of  the  language  of  the  rest  of  the  section  they  seem  to  be 
wholly  unnecessary. 

§  138.  Acceptance  of  incomplete  bill. — A  bill  may  be 
accepted  before  it  has  been  signed  by  the  drawer,  or  while 


ACCEPTANCE.  12  1 

otherwise  incomplete,  or  when  it  is  overdue,  or  after  it  has 
been  dishonored  l)y  a  previous  refusal  to  accept,  or  by  non- 
payment. But  when  a  bill  payable  after  sight  is  dishonored 
by  non-acceptance  and  the  drawee  subsequently  accepts  it, 
the  holder,  in  the  absence  of  any  different  agreement,  is 
entitled  to  have  the  bill  accepted  as  of  the  date  of  the  first 
presentment. 

§  139.  Kinds  of  acceptances. — An  acceptance  is  either 
general  or  qualified.  A  general  acceptance  assents  without 
qualification  to  the  order  of  the  drawer.  A  qualified  ac- 
ceptance in  express  terms  \'aries  the  effect  of  the  bill  as 
drawn  (a). 

(a)  Where  a  bill  is  addressed  to  the  drawee  in  one  place,  and  is 
accepted  payable  in  another,  this  is  a  material  variation.  Walker 
V.  Bank  of  State  of  N.  Y.,  13  Barb.  G3G ;  Niagara  Bank  v.  Fairman 
Co.,  31  Barb.  403.  But  a  bill  addressed  generally  to  a  drawee  in 
a  city  may  be  accepted  payable  at  a  particular  bank  in  that  city. 
Troy  City  Bank  v.  Lanman,  19  N.  Y.  477;  Meyers  v.  Standart,  11 
Ohio  St.  29. 

§  140.  What  constitutes  a  general  acceptance. — An 
acceptance  to  pay  at  a  particular  place  is  a  general  acceptance 
unless  it  expressly  states  that  the  bill  is  to  be  paid  there 
only  and  not  elsewhere  (a). 

(a)  Before  the  enactment  of  the  1  and  2  George  IV.,  c.  78,  it 
was  a  point  much  disputed  whether,  if  a  bill  payable  generallj'  was 
accepted  payable  at  a  particular  place,  such  an  acceptance  was  a 
qualified  one.  Byles  on  Bills,  194.  The  House  of  Lords  finally 
held  that  an  acceptance  payable  at  a  particular  place  was  a  quali- 
fied acceptance,  rendering  it  necessary,  in  an  action  against  the 
acceptor,  to  aver  and  prove  presentment  at  such  place.  Rome  v. 
Young',  2  Brod.  &  Bing.  165;  2  Bligh,  391.  This  led  to  the  passage 
of  the  statute  above  mentioned,  called  Sergeant  Onslow's  act,  which 
provided  that  an  acceptance  payable  at  a  particular  place  should 
be  deemed  a  general  acceptance  unless  expressed  to  be  payable 
thei'e  "only  and  not  otherwise  or  elsewhere."    In  the  United  States 


122  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

the  weight  of  authority  has  heen  contrary  to  the  decision  of  the 
House  of  Lords,  and  in  favor  of  the  rule  as  stated  in  this  section. 
"Wallace  v-  McConnell,  13  Peters,  136.    See  also  note  to  section  70. 

§  141.  Qualified  acceptance.— An  acceptance  is  qtiali- 
fied  which  is : 

1.  Conditional,  tliat  is  to  say,  which  makes  payment  by 
the  acceptor  dependent  on  the  fnlfillment  of  a  condition 
therein  stated  {a)  ; 

2.  Partial,  that  is  to  say,  an  acceptance  to  pay  part  only 
of  tlie  amonnt  for  which  the  bill  is  drawn; 

3.  Local,  that  is  to  say,  an  acceptance  to  pay  only  at  a 
particular  place; 

4.  Onalified  as  to  time; 

5.  The  acceptance  of  some  one  or  more  of  the  drawees, 
but  not  of  all. 

(fl)  Such  an  acceptance  does  not  become  due  until  the  happen- 
ing of  the  contingency  upon  which  the  bill  is  accepted.  Brockway  v. 
Allen,  17  Wend.  40;  Newhall  v.  Clark,  3  Cush.  376;  Myrick  v. 
Merritt,  22  Fla.  335 ;  Marshall  v.  Burnby,  25  Fla.  619. 

§  142.     Rights  of  parties  as  to  qualified  acceptance. — 

The  liolder  may  refttse  to  take  a  qualified  acceptance,  and  if 
he  does  not  obtain  an  unqualified  acceptance,  he  may  treat 
the  bill  as  dishonored  by  non-acceptance  (a).  Where  a 
qualified  acceptance  is  taken,  the  drawer  and  indorsers  are 
discharged  from  lial^ility  on  the  bill,  tmless  they  have  ex- 
pressly or  impliedly  authorized  the  holder  to  take  a  qualified 
acceptance,  or  subseqtiently  assent  thereto.  When  the 
drawer  or  an  indorser  receives  notices*  of  a  qtialified  accept- 
ance, he  must  within  a  reasonable  time  express  his  dissent 
t*)  the  holder,  (jr  lie  will  be  deemed  to  have  assented  thereto. 

(a)  Cline  v.  Miller,  8  Md.  274.  But  if  ho  receive  sucli  an  accept- 
ance he  can  claim  payment  only  according  to  the  condition  or  quali- 
fication. {Id.)  An  agent  for  collection,  as,  for  example,  a  bank, 
has  no  authority  to  receive  anything  short  of  an  explicit  and  un- 

*  Error  in  engrossing. 


PRESENTMENT    FOR    ACCEl'TAXCE.  1 23 

qualified  acceptance.     Walker  v.  New  York  State  Bank,  9  N.  Y. 

582. 


ARTICLE  111.* 

Presentment  for  Acceptance. 

Section  143.   \\'hcn    i)resentment    for    acceptance    must    be 
made. 

144.  When  failure  to  present  releases  drawer  and 

indorser. 

145.  Presentment;  how  made. 

146.  On  what  days  presentment  may  be  made. 

147.  Presentment:  where  time  is  insufficient. 

148.  When  presentment  is  excused. 

149.  When  dishonored  by  non-acceptance. 

T 50.  T^utv  of  holder  where  bill  not  accepted. 
151.  Ki,»hts  of  holder  where  bill  not  accepted. 

§  143.  When  presentment  for  acceptance  must  be 
made. — Presentment  for  acceptance  must  be  made : 

1.  Where  the  bill  is  payable  after  sig'ht  or  in  any  other 
case  where  presentment  for  acceptance  is  necessary  in  order 
to  fix  the  maturity  of  the  instrument  (a)  ;  or 

2.  Where  the  bill  expressly  stipulates  that  it  shall  be  pre- 
sented for  acceptance ;  or 

3.  Where  tlic  bill  is  drawn  payable  elsewhere  than  at 
the  residence  or  place  of  business  of  the  drawee. 

In  no  other  case  is  presentment  for  acceptance  necessary 
in  order  to  render  any  party  to  the  bill  liable. 

(a)   Although  wliL'u  a  bill  is  made  payable  at  a  day  certain,  as 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of  Co- 
lumbia, Florida,  Massachusetts.  North  Carolina.  North  Dakota.  Oregon. 
Tennessee,  Utah,  Virginia  and  Washington.  162-170;  New  York,  240- 
248;  Maryland.  162-170:  Rhode  Island,  isi-159;  Wisconsin,  1681- 
1681-8. 


124  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

at  a  fixed  time  after  its  date,  presentment  for  acceptance  before 
that  time  is  not  necessary  in  order  to  charge  the  drawer  or  in- 
dorsers,  j'et  where  a  bank  receives  such  a  bill  for  collection,  its 
duty  is  to  present  the  bill  for  acceptance  without  delay.  For  it 
is  to  the  owner's  interest  that  the  bill  should  be  so  accepted,  as 
only  by  accepting  it  does  the  drawee  become  bound  to  pay  it, 
and  until  such  acceptance  the  owner  has  for  his  debtor  only  the 
drawer,  and  the  step  is  one  which  a  prudent  man  of  business, 
ordinarily  careful  of  his  own  interests,  would  take  for  his  protec- 
tion. Allen  V.  Suydam,  17  Wend.  3GS.  A  bill  payable  at  a  fixed 
period  from  its  date  may  be  presented  for  acceptance  at  any  time. 
Bachellor  v.  Priest,  12  Pick.  399;  Oxford  Bank  v.  Davis,  4  Gush. 
188. 

§  144.  When  failure  to  present  releases  drawer  and 
indorser. — Except  as  herein  otherwise  provided,  the  holder 
of  a  bill  which  is  required  by  the  next  preceding  section  to 
be  presented  for  acceptance  must  either  present  it  for  ac- 
ceptance or  negotiate  it  within  a  reasonable  time  (a).  If 
he  fails  to  do  so,  the  drawer  and  all  indorsers  are  discharged. 

(a)  Eobinson  v.  Ames,  20  Johns.  146;  Gowan  v.  Jackson,  20 
Johns.  176 ;  Wallace  v.  Agry,  4  Mason,  333 ;  Prescott  Bank  v.  Cov- 
erly,  7  Gray,  217 ;  Walsh  v.  Dort,  23  Wis.  334 ;  Phoenix  Ins.  Co.  v. 
Allen,  11  Mich.  30;  Goupy  v.  Harden,  7  Taunt.  397.  A  delay  of 
the  mail  is  a  sufficient  excuse  for  the  omission  to  immediately 
present  a  bill  for  acceptance;  and  a  presentation  immediately  after 
its  reception  is  in  time  to  charge  the  indorser.  Walsh  v.  Blatchley, 
6  Wis.  422. 

§  145.  Presentment ;  how  made. — Presentment  for  ac- 
ceptance must  be  made  by  or  on  behalf  of  the  holder  at  a 
reasonable  hour  (a),  on  a  business  day,  and  before  the  bill 
is  overdue,  to  the  drawee  or  some  person  authorized  to 
accept  or  refuse  acceptance  on  his  behalf  (b)  ;  and 

I.  Where  a  bill  is  addressed  to  two  or  more  drawees  who 
are  not  partners,  presentment  must  be  made  to  them  all  ( c) , 
unless  one  has  authority  to  accept  or  refuse  acceptance  for 
all,  in  which  case  presentment  may  be  made  to  him  only ; 


PRESENTMENT    FOR    ACCEPTANCE.  1 25 

2.  Where  tlie  drawee  is  dead,  presentment  may  be  made 
to  his  personal  representative  (</)  ; 

3.  \\  here  the  drawee  has  been  adjudged  a  bankrupt  or  an 
insolvent,  or  has  made  an  assignment  for  the  benefit  of 
creditors,  presentment  may  be  made  tu  him  or  his  trustee 
or  assignee. 

(a)  Cayuga  County  Bank  v.  Hunt,  2  Hill,  C3.5. 

(b)  Byles  on  Bills,  182.  The  holder  may  require  the  production 
by  the  agent  of  clear  and  explicit  authority  from  his  principal  to 
accept  in  his  name,  and  without  its  production  may  treat  the  bill 
as  dishonored.     Daniel  on  Negotiable  Instruments,  section  487. 

(c)  But  if  one  of  the  drawees  accepts  he  will  be  bound  by  his 
acceptance.     Smith  v.  Melton,  133  Mass.  369. 

(d)  Presentment  in  such  case  is  not  necessary.  See  section  2-15. 
Indeed,  an  executor  or  administrator  has  no  authority  to  bind  the 
estate  of  the  decedent  by  an  acceptance.  Schmittler  v.  Simon,  101 
N.  Y.  554.  But  as  it  will  in  most  cases  be  convenient  to  have  the 
bill  duly  protested,  it  is  well  to  have  some  one  designated  to  whom 
presentment  can  be  made. 

§  146.     On  what  days  presentment  may  be  made. — A 

bill  may  be  presented  for  acceptance  on  any  day  on  which 
negotiable  instruments  may  be  presented  for  payment  under 
the  provisions  of  sections  seventy-two  and  eighty-five  of  this 
act.  \\'hen  Saturday  is  not  otherwise  a  holiday,  present- 
ment for  acceptance  may  be  made  before  twelve  o'clock  noon 
on  that  day  (a). 

(a)  In  the  Colorado  Act  the  following  is  substituted  for  the  last 
sentence:  "When  any  day  is  in  part  a  holiday,  presentment  for 
acceptance  may  be  made  during  reasonable  hours  of  the  part  of 
such  day  which  is  not  a  holidaj-."  In  the  Wisconsin  Act  the  last 
sentence  is  omitted. 

§  147.  Presentment  where  time  is  insufficient. — \\niere 
the  holder  of  a  bill  drawn  payable  elsewhere  than  at 
the  place  of  business  or  the  residence  of  the  drawee  has  not 
time  with  the  exercise  of  reasonable  diligence  to  present 


126  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

the  bill  for  acceptance  before  presenting  it  for  payment  on 
the  day  that  it  falls  due,  the  delay  caused  by  presenting  the 
bill  for  acceptance  before  presenting  it  for  payment  is  ex- 
cused and  does  not  discharge  the  drawers  and  indorsers. 

§  148.  Where  presentment  is  excused. — Presentment 
for  acceptance  is  excused  and  a  Ijill  may  be  treated  as  dis- 
honored by  n()n-acceptance  in  either  of  the  following  cases : 

1.  Where  the  draw^ee  is  dead  (a),  or  has  absconded,  or  is 
a  fictitious  person  or  a  person  not  having  capacity  to  contract 
bv  bill ; 

2.  Where  after  the  exercise  of  reasonable  diligence,  pre- 
sentment cannot  be  made  (b)  ; 

3.  AMiere,  although  presentment  has  taken*  irregular,  ac- 
ceptance has  been  refused  on  some  other  ground. 

(a)  Prior  to  the  statute  there  was  some  doubt  as  to  the  proper 
course  in  this  case.  See  Daniel  on  Negotiable  Instruments,  section 
1178.  But  as  the  personal  representative  cannot  bind  the  estate  by 
an  acceptance  (Schmittler  v.  Simon,  101  N.  Y.  554),  presentment 
would  be  but  an  idle  form. 

(h)  As  to  what  will  constitute  due  diligence,  see  Sulsbacker  v. 
Bank  of  Charleston,  86  Tenn.  201. 

§  149.     When   dishonored   by  non-acceptance. — A  bill 

is  dishonored  l)y  non-acceptance  : 

1.  When  it  is  duly  presented  for  acceptance,  and  such  an 
acceptance  as  is  prescril)ed  l)y  this  act  is  refused  or  cannr)t 
be  obtained ;  or 

2.  When  ])resentment  for  acceptance  is  excused  and  the 
bill  is  not  accepted. 

§  150.  Duty  of  holder  where  bill  not  accepted, — 
W'here  a  bill  is  duly  presented  for  acceptance  and  is  not  ac- 
cepted wuthin  the  prescribed  time,  the  person  presenting  it 

■'"  Through  an  error  in  engrossing  the  word  "  taken"  has  been  sub- 
stituted for  "  been"  in  the  Pennsylvania  act. 


I'KOTEST.  127 

must  treat  the  bill  as  dishonored  b\-  non-acceptance  or  he 
loses  the  right  of  recourse  against  the  drawer  and  indorsers. 

§  151.  Rights  of  holder  where  bill  not  accepted. — 
When  a  bill  is  dishonored  by  non-acceptance,  an  immediate 
right  (jf  recourse  against  the  drawers  and  indorsers  accrues 
to  the  holder,  and  no  presentment  for  pa}mient  is  neces- 
sary (a). 

(a)   Sterry  v.  Robinson,  1  Day  (Conn.),  11. 


ARTICLE  IV. ^ 
Protest. 

Section  152.  In  wliat  cases  protest  necessary. 

153.  Protest ;  how  made. 

1 54.  Protest ;  by  whom  made. 

155.  Protest;  when  to  be  made. 

156.  Protest ;  where  made. 

157.  Protest  both  for  non-acceptance  and  non-pay- 

ment. 

158.  Protest   before   maturity   where    acceptor    in- 

solvent. 

159.  \Mien  protest  dispensed  with. 

160.  Protest ;  where  bill  is  lost,  et  cetera. 

§  152.     In    what    cases    protest    necessary. — Where  a 

foreign  bill  a[)pearing  on  its  face  to  l)e  such  is  dishonored 
by  non-acceptance,  it  must  be  duly  protested  for  non-accept- 


*  The  numbers  of  the  sections  of  tliis  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of  Co- 
lumbia. Florida.  Massachusetts.  North  Carolina.  North  Dakota.  Ore- 
gon, Tennessee.  I'tah.  Virginia  and  Washington.  152-160:  New  York. 
260-268;  >rarvland.  171-179:  Rhode  Island,  160-168;  Wisconsin,  1681-9- 
1681-17. 


ij8  the  negotiable  instruments  law. 

ance,  and  where  such  a  bill  which  has  not  previously  been 
dishonored  by  non-acceptance  is  dishonored  by  non-payment, 
it  must  be  duly  protested  for  non-payment.  If  it  is  not  so 
protested,  the  drawer  and  indorsers  are  discharged  (a). 
\Miere  a  bill  does  not  appear  on  its  face  to  be  a  foreign  bill, 
protest  thereof  in  case  of  dishonor  is  unnecessary  (b). 

(a)  Commercial  Bank  v.  Varnum,  49  N.  Y.  269,  275;  Halliday  v. 
McDougall,  20  Wend.  81;  Deunistomi  v.  Stewart,  17  How.  (U.  S.) 
606 ;  Phoenix  Bank  i'.  Hussey,  12  Pick.  483.  Protest  is  indispensa- 
ble, and  the  proof  cannot  be  supplied  in  any  other  way.  Joseph  v. 
Solomon,  19  Fla.  623.  There  are  several  reasons  why  protest  is 
required  in  such  cases:  (1)  for  the  sake  of  uniformity  in  interna- 
tional transactions;  (2)  because  it  affords  satisfactory  evidence  of 
dishonor  to  the  drawer,  who,  from  his  residence  abroad,  might  ex- 
perience a  difficulty  in  making  inquiries  on  the  subject  and  be 
compelled  to  rely  on  the  representations  of  the  holder;  (3)  because, 
as  foreign  courts  give  credit  to  the  acts  of  a  public  functionary, 
the  protest  affords  the  most  satisfactory  evidence  to  charge  an  ante- 
cedent party.     Byles,  256. 

(h)   See  sections  118  and  129. 

§  153.  Protest  ;  how  made.— The  protest  must  be  an- 
nexed to  the  bill,  or  must  contain  a  copy  thereof  (a),  and 
must  be  under  the  hand  {b)  and  seal  (c)  of  the  notary 
making  it,  and  must  specify : 

1.  The  time  (d)  and  place  (e)  of  presentment; 

2.  The  fact  that  presentment  was  made  and  the  manner 
thereof ; 

3.  The  cause  or  reason  for  protesting  the  bill ; 

4.  The  demand  made  and  the  answer  given,  if  any,  or 
the  fact  that  the  drawee  or  acceptor  could  not  be  found  (f). 

(a)  Fulton  v.  MacCracken,  18  Md.  528. 

(h)  The  signature  of  the  notary  may  be  printed.  Bank  of 
Cooperstown  v.  Woods,  28  N.  Y.  561;  Fulton  v.  MacCracken,  18 
Md.  528. 

(c)  Donegan  v.  Wood,  49  Ala.  251.  In  other  cases  it  has  been 
held  that  the  official  signature  is  all  that  is  required.     Huffuker  v. 


PROTEST.  1 29 

National  Bank,  12  Bush.  29;i.  When  the  court  can  perceive  that  a 
seal  is  attached  thereto  the  protest  is  sufficiently  authenticated;' 
neither  the  seal  nor  the  si^iature  of  tlic  notary  uc^d  be  proved. 
Barry  v.  Crowly,  4  Gill  (Md.)  194. 

(d)  In  the  case  of  a  note,  the  statement  in  a  notarial  certificate 
that  it  was  presented  on  a  certain  day  is  not  conclusive  upon  the 
parties,  but  evidence  is  admissible  to  show  that  presentment  was 
also  made  on  another  day.     Keynolds  v.  Appleman,  41  Md.  015. 

(e)  A  certificate  of  a  notary  which  states  tliat  he  presented  a 
note  for  payment  at  a  certain  town  and  demanded  payment,  which 
was  refused,  but  did  not  state  to  whom  or  at  what  place  in  the  town 
it  was  presented,  does  not  show  such  a  presentation  to  the  maker 
as  will  bind  the  indorser.     Duckert  v.  Von  Lilicnthal,  11  Wis.  56. 

(/")  The  notarial  certificate  of  protest  is  competent,  without  fur- 
ther proof.  This  has  often  been  so  held  in  respect  to  foreign  bills. 
Porter  /;.  Judson,  1  Gray,  175;  Pierce  r.  Indscth,  lOG  U.  S.  546; 
Browne  v.  Philadelphia  Bank,  6  S.  &  K.  484 ;  Coruth  v.  Walker,  8 
Wis.  252.  For  this  purpose  the  different  States  of  the  Union  are 
deemed  foreign  to  each  other,  so  that  the  notorial  certificate  of  pro- 
test under  seal  is  good  on  mere  production.  Townsley  v.  Sumrall, 
2  Pet.  170;  Ilalliday  v.  McDougall,  20  Wend.  81;  Carter  v.  Burley, 
9  N.  H.  558,  566;  Johnson  v.  Brown,  154  ]\[ass.  105,  106.  The  state- 
ment in  the  certificate  that  notice  of  dishonor  has  been  given  is 
also  received  as  evidence.  Barry  v.  Crowly,  4  Gill  (Md.)  194; 
Rosson  V.  Carroll,  90  Tenn.  90 ;  Legg  v.  Vinal,  165  Mass.  555.  But 
the  notary's  certificate  is  not  evidence  of  other  collateral  or  inde- 
pendent facts  it  may  contain,  especially  when  such  facts  are  not 
necessarily  within  the  personal  knowledge  of  the  notary,  or  are  of 
such  a  character  as  could  not  be  established  by  his  testimony  if  he 
were  produced  as  a  witness.  Weems  v.  Farmers'  Bank,  15  Mil. 
231.  Thus,  the  statement  that  the  party  on  whom  the  demand 
was  made  was  "  one  of  the  administrators"  of  the  acceptor  does 
not  establish  the  facts  of  the  death  of  the  acceptor,  and  of  the 
granting  of  letters  of  administration  on  his  estate  to  such  party. 
(/(/.)  So  the  words  "  after  diligent  search  and  inciuiry  to  ascertain 
his  whereabouts"  are  not  admissible  as  evidence  of  such  "diligent 
search  and  inquiry"  having  been  made;  for  this  is  a  conclusion  of 
law  which  the  notary  could  not  legally  draw  or  establish  by  his 
own  testimony.  Kcier  i-.  Strauss,  54  Md.  278.  See  also  Ricketts  v. 
Pendleton,  14  Md.  320;  Duckert  v.  Von  Lilicnthal,  11  Wis.  56; 
Sumner  v.  Bowen,  2  Wis.  524;  Adams  v.  Wright.  14  Wis.  408.  A 
notarial  certificate  of  protest  is  evidence  of  the  facts  therein  set 


130  T]1E    NEGOTIABLE    INSTRUMENTS    LAW. 

forth,  although  the  notary,  when  examined,  has  no  recollection  of 
them.  Rosson  v.  Carroll,  90  Tenn.  90;  Sherer  v.  Easton  Bank,  33 
Pa.  St.  134.  And  the  entries  of  a  deceased  notary  in  his  register 
are  admissible.  Spann  v.  Baltzell,  1  Fla.  301;  Porter  v.  Judson,  1 
Gray,  175.  When  a  notary  has  neglected  to  keep  a  record  of  the 
notice  which  he  has  served  on  the  non-payment  of  a  note,  his  oral 
testimony  is  admissible  to  prove  its  contents.  Terbell  v.  Jones,  15 
Wis.  253.  Where  the  protest  is  exclusively  relied  upon  to  prove 
the  necessary  facts  to  fix  liability  upon  the  parties  to  be  affected, 
it  must  contain  sufficient  averments  to  show  that  everything  requi- 
site has  been  done  on  the  part  of  the  holder,  or  his  agent,  to  author- 
ize the  demand  upon  the  indorser.  People's  Bank  v.  Brooke,  31 
Md.  7. 

§  154.  Protest ;  by  whom  made. — Protest  may  be  made 
by: 

1.  A  notary  public  (a)  ;  or 

2.  By  any  respectable  resident  of  the  place  where  the  bill 
is  dishonored,  in  the  presence  of  two  or  more  credible  wit- 
nesses (b). 

(a)  It  would  seem  that,  in  the  absence  of  any  custom  or  usage 
on  the  subject,  the  presentment  and  demand  must  be  made  by  the 
notary  in  person.  Commercial  Bank  v.  Varnum,  49  N.  Y.  269,  275 ; 
Ocean  Nat.  Bank  v.  Williams,  102  Mass.  141.  A  notary  who  is  an 
officer  of  a  bank  may  legally  protest  paper  belonging  to  the  bank. 
Nelson  V.  First  National  Bank,  69  Fed.  Rep.  798;  29  U.  S. 
554;  16  C.  C.  A.  425.  And  though  he  is  also  a  stockholder  in  the 
bank.  Moreland's  Assignee  v.  Citizens'  Savings  Bank,  (Ky.)  30 
S.  W.  Rep.  19.  And  it  has  been  held  that  the  cashier  of  a  bank  who 
is  a  notary  may  legally  protest  his  own  note  which  has  been  dis- 
counted by  the  bank.    Uykman  v.  Northridge,  1  App.  Div.  26. 

(&)  Todd  V.  Neal's  Administrator,  49  Ala.  273. 

§  155.  Protest ;  when  to  be  made. — When  a  bill  is 
protested,  such  protest  must  be  made  on  the  day  of  its  dis- 
honor, unless  delay  is  excused  as  herein  provided.  When  a 
bill  has  been  duly  noted,  the  protest  may  be  subsequently 
extended  as  of  the  date  of  the  noting  (a). 


PROTEST.  131 

(a)  Tlie  protest  slu.uM  bo  coiameiiced,  at  least  (and  such  au 
incipient  protest  is  called  noting),  on  the  day  on  wiiich  acceptance 
or  payment  is  refused;  but  it  may  be  drawn  up  and  completed  at 
any  time  before  the  eommcncenient  of  the  suit,  or  even  before  or 
during  the  trial,  and  ante-dated  accordingly.     Byles  on  Bills,  257. 

§  156.  Protest;  where  made.— A  ImI!  iiiiist  be  pro- 
tested at  the  place  where  it  is  dishonored  (a),  except  that 
when  a  ])ill  drawn  payable  at  the  place  of  business  or  resi- 
dence of  some  person  other  than  the  drawee,  has  been  dis- 
honored by  non-acceptance,  it  must  be  protested  for  non- 
payment at  the  place  where  it  is  expressed  to  be  payable,  and 
no  further  presentment  for  payment  to,  or  demand  on,  the 
drawee  is  necessary  (b). 

(a)   See  Daniel  on  Neg  Inst.,  section  935;  Byles  on  Bills,  257. 
(h)  3  William  IV.  Ch.  98;  Daniel  on  Xeg.  Inst.,  section  935; 
Byles  on  Bills,  258. 

§  157.  Protest  both  for  non-acceptance  and  non- 
payment.— A  bill  which  has  been  protested  for  non-accept- 
ance may  be  subsequently  protested  for  n(  )n-payment. 

§  158.  Protest  before  maturity  where  acceptor  insol- 
vent.— Where  the  acceptor  has  been  adjudged  a  bankrupt 
or  an  insolvent,  or  has  made  an  assignment  for  the  benefit 
of  creditors,  before  the  bill  matures,  the  holder  may  cause  the 
bill  to  be  protested  for  better  secm-ity  against  tlic  drawer  and 
indorsers. 

g  159.  When  protest  dispensed  with. — Protest  is  dis- 
pensed with  by  any  circumstances  which  would  dispense 
with  notice  of  dishonor.  Delay  in  noting  or  protesting  is 
excused  when  delay  is  caused  by  circumstances  beyond  the 
control  of  the  holder  and  not  imputable  to  his  default,  mis- 
conduct, or  negligence.  When  the  cause  of  delay  ceases 
to  operate,  the  bill  must  be  noted  or  protested  with  reasonable 
diligence. 


13-2  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  i6o.  Protest  where  bill  is  lost,  et  cetera. —  When 
a  bill  is  lust  or  destroyed  or  is  wrongly  detained  from  the 
person  entitled  to  hold  it,  protest  may  be  made  on  a  copy 
or  written  particulars  thereof  (a). 

(a)  Hinsdale  v.  Miles,  5  Conn.  331.  Loss  of  the  instrument  does 
not  excuse  demand  and  protest.  Daniel  on  Negotiable  Instru- 
ments, section  1464.    See  also  section  148. 


ARIICLE  v.* 
Acceptance  for  Honor. 

Section  i6i.   When  hill  may  be  accepted  for  honor. 

162.  Acceptance  for  honor;  how  made. 

163.  When  deemed  to  be  an  acceptance  for  honor  of 

the  drawer. 

164.  Liability  of  acceptor  for  honor. 

165.  Agreement  of  acceptor  for  honor. 

166.  Maturity  of  bill  payable  after  sight;  accepted 

for  honor. 

167.  Protest  of  bill  accepted  for  honor,  et  cetera. 

168.  Presentment    for    payment    to    acceptor    for 

honor ;  how  made. 

169.  \Anien    delay    in    making    presentment    is    ex- 

cused. 

170.  Dishonor  of  bill  by  acceptor  for  honor. 

§  161.  When  bill  may  be  accepted  for  honor. — Where 
a  bill  of  exchange  has  been  pi-otested  for  dishonor  by 
non-acceptance  or  protested  for  better  security  and  is  not 
overdue,  any  person  not  being  a  party  already  liable  thereon 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of 
Columbia.  Florida.  Massachusetts.  North  Carolina.  North  Dakota, 
Oregon,  Tennessee,  Utah,  Virginia  and  Washington,  161-170;  New 
York,  280-289;  Maryland,  i8o-i8q;  Rhode  Island,  169-178;  Wisconsm, 
1681-18-1681-27. 


ACCEPTANCE    FOR    IIOXOK.  1 33 

may,  with  the  consent  of  the  holder,  intervene  and  accej^t 
the  l)ill  supra  protest  for  the  honor  of  any  party  hahle 
thereon  or  for  the  lionor  of  tlie  i>erson  for*  whose  account 
the  hill  is  drawn.  The  acceptance  for  honor  may  be  for  part 
only  of  the  sum  for  which  the  hill  is  drawn ;  and  where  there 
has  been  an  acceptance  for  honor  for  one  party,  there  may 
be  a  further  acceptance  by  a  different  person  for  the  honor 
of  another  party   (a). 

(a)  Byles  on  Bills,  262-266. 

§  162.  Acceptance  for  honor  ;  how  made. — An  accept- 
ance for  honor  supra  protest  must  be  in  writing  and  indicate 
that  it  is  an  acceptance  for  honor,  and  must  be  signed  by  the 
acceptor  for  honor. 

§  163.  When  deemed  to  be  an  acceptance  for  honor 
of  the  drawer. — Where  an  acceptance  for  honor  does 
not  expressly  state  for  whose  honor  it  is  made,  it  is  deemed 
to  be  an  acceptance  for  the  honor  of  the  drawer. 

§  164.     Liability  of  acceptor  for  honor. — The  acceptor 

for  honor  is  liable  to  the  holder  and  to  all  parties  to  the  bill 
subsequent  to  the  party  for  whose  honor  he  has  ac- 
cepted  (a). 

(a)  Tlie  acceptor  for  the  honor  of  the  drawer  cannot  maintain 
an  action  thereon  against  him  without  proof  of  its  presentment  to 
the  drawee  nml  non-acceptance  or  non-payment  by  him,  and  notice 
thereof  to  the  drawer.    Baring  v.  Clark,  19  Pick.  220. 

§  165.  Agreement  of  acceptor  for  honor. — The  ac- 
ceptor for  honor  by  such  acceptance  engages  that  he  will  on 
due  presentment  pay  the  bill  according  to  the  terms  of  his 
acceptance,  provided  it  shall  not  have  been  paid  bv  the 
drawee,  and  provided  also  that  it  shall  have  been  duly  pre- 


*  The  word  "  for"  omitted  in  the  original  New  York  Act  supplied  by 
Laws  1898,  c.  336. 


134  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

sented   for   payment   and   protested   for   non-payment    and 
notice  of  dishonor  given  to  him. 

§  i66.  Maturity  of  bill  payable  after  sight ;  accepted 
for  honor. — Where  a  bill  payable  after  sight  is  accepted  for 
honor,  its  maturity  is  calculated  from  the  date  of  the  noting 
for  non-acceptance  and  not  from  the  date  of  the  acceptance 
for  honor. 

§  167.  Protest  of  bill  accepted  for  honor,  et  cetera. — 
Where  a  dishonored  bill  has  been  accepted  for  honor  supra 
protest  or  contains  a  reference  in  case  of  need,  it  must  be 
protested  for  non-payment  before  it  is  presented  for  payment 
to  the  acceptor  for  honor  or  referee  in  case  of  need. 

§  168.  Presentment  for  payment  to  acceptor  for  honor  ; 
how  made. — Presentment  for  payment  to  the  acceptor  for 
honor  must  be  made  as  follows  : 

1.  If  it  is  to  be  presented  in  the  place  where  the  protest 
for  non-payment  was  made,  it  must  be  presented  not  later 
than  the  day  following  its  maturity; 

2.  If  it  is  to  be  presented  in  some  other  place  than  the 
place  where  it  was  protested,  then  it  must  be  forwarded 
within  the  time  specified  in  section  one  hundred  and  four  (a). 

(a)  Doubts  having  arisen  as  to  the  day  when  the  bill  should  be 
again  presented  to  the  acceptor  for  honor,  or  referee  in  case  of  need, 
for  payment,  the  6  and  7  Will.  4,  c.  58,  enacted  that  it  should  not  be 
necessary  to  present,  or  in  case  the  acceptor  for  honor  or  referee 
live  at  a  distance,  to  forward  for  presentment,  till  the  day  fol- 
lowing that  on  which  the  bill  becomes  due.     Byles  on  Bills,  263. 

§  169.     When    delay   in    making   presentment   is   ex- 
cused. —  The  provisions  of  section  eighty-one  apply  where 
there  is  delay  in  making  presentment  to  the  acceptor  for 
honor  or  referee  in  case  of  need. 


I'AVMEXT    FOR    IIOXOK.  I35 

§  170.     Dishonor  of  bill  by  acceptor  for  honor. —  When 

the  bill  is  dishonored  hy  ilic  acceptor  for  honor  it  must  be 
protested  for  non-payment  1)y  him. 


ARTICLE  VI.=^= 
Payment  for  Honor. 

Section  171.  Who  may  make  payment  for  honor. 

1 72.  Payment  for  honor ;  how  made. 

173.  Declaration  before  payment  for  honor. 

T74.   Preference  of  parties  offering  to  pay  for  honor. 

175.  Effect  on  subsequent  parties  where  bill  is  paid 

for  honor. 

176.  ^^^lerc  holder  refuses  to  receive  payment  supra 

protest. 

177.  Rights  of  payer  for  honor. 

§  171.  Who  may  make  payment  for  honor. — Where  a 
bill  has  been  protested  for  non-payment,  any  person  may 
intervene  and  pay  it  supra  protest  for  the  honor  of  anv  per- 
son liable  thereon  or  for  the  honor  of  the  person  for  whose 
account  it  was  drawn  (a). 

(a)   Byles  on  Bills,  267-269;  Daniel  (ui  Neg.  Inst.,  section  1254. 

§  172.  Payment  for  honor ;  how  made. — The  payment 
for  honor  supra  protest  in  order  to  operate  as  such  and  not 
as  a  mere  voluntary  payment  must  be  attested  by  a  notarial 
act  of  honor,  which  may  be  appended  to  the  protest  or  form 
an  extension  to  it  (a). 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pcnii.^vlvania  are  as  ftilhiws:  Colorado.  Connecticut.  District  of  Co- 
lumbia, Florida,  Massachusetts,  North  Carolina.  North  Dakota,  Ore- 
gon, Tennessee.  Utah.  \'irginia  and  Washington,  171-177;  New  York, 
300-306:  Rhode  Island.  170- 18^;  ^^arvland.  190-IQ6;  Wisconsin.  1681- 
28-1681-34. 


136  TIIK    NEGOTIAHLI-:    IXSTKUMENTS    LAW. 

(a)  Byles  on  Bills,  267;  Daniel  on  Neg.  Inst.,  section  1258.  A 
stranger  to  the  drawer  and  indorser  of  a  non-accepted  bill  may 
intervene  supra  protest,  to  pay  the  same  for  the  honor  of  the  in- 
dorser or  drawer.  Konig  v.  Bayard,  1  Pet.  250.  And  it  is  no 
objection  to  this  intervention  that  it  has  been  done  at  the  reciuest 
and  under  the  guarantee  of  the  drawer  who  had  refused  acceptance 
or  payment.     (Id.) 

§  173.  Declaration  before  payment  for  honor.— The 
notarial  act  of  honor  must  be  founded  on  a  declaration  made 
by  the  payer  for  honor,  or  by  his  agent  in  that  behalf  declar- 
ing his  intention  to  pay  the  bill  for  honor  and  for  whose 
honor  he  pays. 

§  174.     Preference  of  parties  offering  to  pay  for  honor. 
— Where  two  or  more  persons  offer  to  pay  a  bill  for  the 
honor  of  different  parties,  the  person  whose  payment  will 
'  discharge  most  parties  to  the  bill  is  to  be  given  the  pref- 
erence. 

§  175.  Effect  on  subsequent  parties  where  bill  is 
paid  for  honor. — Where  a  bill  has  been  paid  for  honor  all 
parties  subsec|tient  to  the  party  for  whose  honor  it  is  paid 
are  discharged,  Init  the  payer  for  honor  is  subrogated  for. 
and  succeeds  to,  both  the  rights  and  duties  of  the  holder  as 
regards  the  party  for  whose  honor  he  pays  and  all  parties 
liable  to  the  latter  (a). 

(a)  Daniel  on  Neg.  Inst.,  section  1255. 

§  176.  Where  holder  refuses  to  receive  payment 
supra  protest. — Wlierc  tlie  holder  of  a  bill  refuses  to  re- 
ceive payment  supra  protest,  he  loses  his  right  of  recourse 
against  any  party  who  would  have  been  discharged  by  such 
payment. 

§  177.  Rights  of  payer  for  honor. — The  payer  for 
honor,  on  paying  to  the  holder  the  amount  of  the  bill  and 


BILLS    IN    A    SET.  137 

the  notarial  expenses  incidental  to  its  dishonor,  is  entitled 
to  receive  both  the  bill  itself  and  the  protest. 


ARTICLE  \'IT.* 

Bills  ix  a  Set. 

Section  178.   Bills  in  sets  constitute  one  bill. 

179.   Rights  of  holders   where   different   parts   are 

negotiated. 
I  So.   Liability  of  holder  who  indorses  two  or  more 

parts  of  a  set  to  different  persons. 
i8t.   Acceptance  of  l)ills  drawn  in  sets. 

182.  Payment  by  acceptor  of  bills  drawn  in  sets. 

183.  Effect  of  discharging  one  of  a  set. 

§  178.  Bills  in  sets  constitute  one  bill. — Where  a  bill 
is  drawn  in  a  set,  each  part  of  the  set  being  numbered  and 
containing  a  reference  to  the  other  parts,  the  whole  of  the 
parts  constitutes  one  bill  (o). 

(a)  Byles  on  Bills,  387;  Daniel  on  Neg.  Inst.,  section  113;  Dur- 
kin  I'.  Cranston,  7  Johns.  442. 

§  179.  Rights  of  holders  where  different  parts  are 
negotiated. —  Where  two  or  more  parts  of  a  set  are  nego- 
tiated to  different  holders  in  due  course,  the  holder  whose 
title  first  accrues  is  as  between  such  holders  the  true  owner 
of  the  bill  (a).     But  nothing  in  this  section  affects  the  rights 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of 
Columbia.  Florida.  Massachusetts.  North  Carolina.  North  Dakota.  Ore- 
gon. Tennessee.  Utah.  Virginia  and  Washington.  178-183;  New  York. 
310-315:  ^laryiand,  197-202;  Rhode  Island.  186-191  ;  Wisconsin.  1681- 
35-1681-40. 


138  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

of  a  person  who  in  due  course  accepts  or  pays  the  part  first 
presented  to  him. 

(a)  Byles  on  Bills,  389;  Walsh  v.  Blatchley,  6  Wis.  422. 

^  180.  Liability  of  holder  who  indorses  two  or  more 
parts  of  a  set  to  different  persons. — Where  the  holder 
of  a  set  indorses  two  or  more  parts  to  different  persons  he 
is  liable  on  every  such  part,  and  every  indorser  subsequent 
to  him  is  liable  on  the  part  he  has  himself  indorsed,  as  if 
such  parts  were  separate  bills  {a). 

(a)   Holdsworth  v.  Hunter,  10  C.  B.  449 ;  Byles  on  Bills,  389. 

§  181.  Acceptance  of  bills  drawn  in  sets. — The  ac- 
ceptance may  be  written  on  any  part,  and  it  must  be  written 
on  one  part  only.  If  the  drawee  accepts  more  than  one  part, 
and  such  accepted  parts  are  negotiated  to  different  holders  in 
due  course,  he  is  liable  on  every  such  part  as  if  it  were  a 
separate  bill  (a). 

(a)  Holdsworth  v.  Hunter,  10  C.  B.  449;  Byles  on  Bills,  389. 
Either  of  the  set  may  be  presented  for  acceptance,  and  if  not  ac- 
cepted a  right  of  action  arises,  upon  due  notice,  against  the  in- 
dorser. Dounes  &  Co.  v.  Church,  13  Peters,  205 ;  Walsh  v.  Blatch- 
ley, 6  Wis.  422,  425. 

§  182.  Payment  by  acceptor  of  bills  drawn  in  sets. — 
When  the  acceptor  of  a  bill  drawn  in  a  set  pays  it  without 
requiring  the  part  bearing  his  acceptance  to  be  delivered  up 
to  him.  and  that  part  at  maturity  is  outstanding  in  the  hands 
of  a  lioldcr  in  due  course,  he  is  liable  to  tlie  holder  there- 
on (a). 

(a)  Byles  on  Bills,  389. 

§  183.  Effect  of  discharging  one  of  a  set. — Except  as 
herein  otherwise  provided,   where  any  one  part  of  a  bill 


PROMISSORY     NOTES    AND    CHECKS.  I39 

drawn  in  a  set  is  discharged  by  payment  or  otherwise  the 
whole  bill  is  discharged  (a). 

(a)  Byk's  on  Bills,  388.  The  Wisconsin  Act  contains  an  addi- 
tional article,  as  follows: 

Section  1682.  Whenever  any  bill  of  exchange  drawn  or  indorsed 
within  this  State  and  payable  without  the  limits  of  the  United 
States  shall  Ix^  duly  protested  for  non-acceptance  or  non-payment 
the  party  liable  for  the  contents  of  such  bill  shall,  on  due  notice 
and  demand  thereof,  pay  the  same  at  the  current  rate  of  exchange 
at  the  time  of  the  demand,  and  damages  at  the  rate  of  five  per  cent, 
upon  the  contents  thereof,  together  with  interest  on  the  said  con- 
tents, to  be  computed  from  the  date  of  the  protest ;  and  said  amount 
of  contents,  damages  and  interest  shall  be  in  full  of  all  damages, 
charges  and  expenses. 

§  1083.  If  any  bill  of  exchange  drawn  upon  any  person  or  cor- 
poration out  of  this  State,  but  within  some  State  or  Territory  of 
the  United  States,  for  the  payment  of  money  shall  be  duly  pre- 
sented for  acceptance  or  payment  and  protested  for  non-acceptance 
or  non-payment  the  drawer  or  indorscr  thereof,  due  notice  being 
given  of  such  non-acceptance  or  non-payment,  shall  pay  said  bill, 
with  legal  interest  according  to  its  tenor  and  five  per  cent,  damages, 
together  with  costs  and  charges  of  protest. 


CHAPTER  III. 

PROMIS.SORY  Notes  and  Checks. 

ARTICLE  I.* 

Section  1S4.  r'roniissory  note  dehned. 

185.  Check  defined. 

186.  Within  what  time  a  check  must  be  presented. 

187.  Certification  of  check;  effect  of. 

188.  Effect  where  holder  of  check  procures  it  to  be 

certified. 

189.  When  check  operates  as  an  assignment. 

*  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Connecticut.  District  of 
Columbia.  Florida,  Massachusetts.  North  Carolina.  North  Dakota. 
Oregon.  Tennessee.  Utah.  Virginia  and  Washington.  184-189:  New 
York.  320-325;  Maryland.  203-208;  Rhode  Island.  192-197;  Wisconsin. 
1684- 1684-5. 


140  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

§  184.  Promissory  note  defined. — A  negotiable  prom- 
issory note  within  the  meaning  of  this  act  is  an  uncon- 
ditional promise  in  writing  made  by  one  person  to  another, 
signed  by  the  maker,  engaging  to  pay  on  demand  or  at  a  fixed 
or  determinable  future  time  a  sum  certain  in  money  to  order 
or  to  bearer  (a).  Where  a  note  is  drawn  to  the  maker's 
own  order,  it  is  not  complete  until  indorsed  by  him  {b). 

(a)  This  section  makes  a  change  in  the  law  of  New  York  as  re- 
gards the  presumption  of  consideration  in  the  case  of  non-negotia- 
ble notes.  The  terms  of  the  former  New  York  statute  included  a 
note  payable  to  a  person  named  therein  without  words  of  nego- 
tiability. Carnwright  v.  Gray,  127  N.  Y.  92.  But  as  that  statute 
has  been  repealed,  and  as  the  provisions  of  the  Negotiable  Instru- 
ment Law  apply  only  to  negotiable  promissory  notes,  it  is  now 
necessaiy  to  prove  consideration  in  actions  upon  non-negotiable 
not-es.  Deyo  v.  Thompson,  53  App.  Div.  (N.  Y.)  12.  The  rules 
on  the  subject  have  differed  in  the  different  States.  See  Daniel 
on  Negotiable  Instruments,  section  163.  In  Connecticut  the  act 
has  made  no  change  in  the  law ;  for  the  rule  in  that  State  has  been 
that  a  non-negotiable  note  does  not  import  a  consideration.  Bris- 
tol V.  Warner,  19  Conn.  17.  A  certificate  of  deposit  issued  by  a 
banker  in  the  ordinary  form  of  such  instruments  is,  in  substance 
and  legal  effect,  a  negotiable  promissory  note.  Curran  v.  Witter, 
68  Wis.  16;  Maxwell  v.  Agnew,  21  Fla.  154.  And  so  are  coupons 
payable  to  bearer.     Trustees  of  the  I.  I.  Fund.  v.  Lewis,  34  Fla.  424. 

(h)  A  note  payable  to  the  order  of  the  maker  is  a  negotiable 
note.  Miller  v.  Weeks,  22  Pa.  St.  89.  Under  the  former  statute  in 
New  York  the  indorsement  of  the  maker  was  not  necessary.  Irving 
National  Bank  v.  Alley,  79  N.  Y.  536.  Where  a  promissory  note 
payable  to  the  order  of  the  maker  is  indorsed  by  him,  the  indorse- 
ment does  not  change  or  aifect  the  nature  and  character  of  his 
liability.     Madison  Stjuarc  Bank  r.  Pierce,  137  N.  Y.  444. 

§  185.  Check  defined. — A  check  is  a  bill  of  exchange 
drawn  on  a  bank  (a),  payable  on  demand  (b).  Except  as 
herein  otherwise  provided,  the  provisions  of  this  act  ap- 
plicable to  a  bill  of  exchange  payable  on  demand  apply  to  a 
check   (c). 


PROMISSORY     NOTES    AND    CHECKS.  I41 

(a)  One  of  the  characteristics  which  distinguish  a  check  from  a 
bill  of  exchange  is  that  a  check  is  always  drawn  on  a  bank  or 
banker.  Harris  v.  Clark,  3  N.  Y.  93,  11.5;  In  the  matter  of  Brown, 
2  Story's  liep.  5U2.  See  also  Bull  v.  Bank  of  Kasson,  123  U.  S. 
105;  Rogers  v.  Durant,  140  U.  S.  298;  Espy  v.  Bank  of  Cincinnati, 
18  Wall.  620;  Merchants'  Bank  v.  State  Bank,  10  Wall.  GO-4;  Chap- 
man V.  White,  ()  N.  Y.  412;  Ilarker  v.  Anderson,  21  Wend.  373; 
Murray  v.  Judah,  6  Cow.  484;  Cruger  v.  Armstrong,  3  Johns.  5; 
Kidgeley  Bank  v.  Patton,  109  111.  484;  Harrison  v.  Nicollet  Nat. 
Bank,  41  Minn.  489;  Northwestern  Coal  Co.  v.  Bowman,  69  Iowa, 
152;  Planters'  Bank  v.  Keese,  7  Heisk.  200;  Blair  v.  Wilson,  28 
Gratt.  170;  Dodd  v.  Jette,  10  Oregon  31;  Ilopkinson  v.  Forster, 
L.  R.  18  Eq.  74. 

(/;)  There  has  been  some  conflict  in  the  decisions  as  to  whether 
a  draft  upon  a  bank  not  payable  immediately  was  a  check  or  bill 
of  exchange.  The  latter  view  was  adopted  in  New  York.  Bowen 
V.  Newell,  8  N.  Y.  190;  13  N.  Y.  390.  To  the  same  effect  also 
are  the  following  cases:  Ivory  v.  Bank  of  the  State,  36  Mo.  475; 
Harrison  i'.  Nicollet  National  Bank,  41  Minn.  488;  Georgia  Na- 
tional Bank  v.  Henderson,  46  Ga.  496;  Minturn  v.  Fisher,  4  Cal. 
36;  Morrison  v.  Bailey,  5  Ohio  St.  13.  Confrn:  Champion  v.  Gor- 
don, 70  Pa.  St.  474;  Westminster  Bank  r.  Wheaton,  4  R.  I.  30; 
//(  re  Brown,  2  Story,  502.  In  all  of  these  cases  the  particular 
question  presented  was  whether  the  instrument  was  entitled  to 
grace.  But  now  that  grace  has  been  abolished  the  distinction  is 
of  little,  if  any.  practical  importance. 

(c)  Bill  V.  Stewart,  156  Mass.  508;  Ames  v.  Meriam,  98  Mass. 
294.  Presentment  and  notice  of  dishonor  are  necessary  in  order 
that  the  holder  may  recover  of  the  drawer.  Ilerker  v.  Anderson, 
21  Wend.  372;  Dolph  v.  Rice,  18  Wis.  397.  But  unless  the  check 
answers  the  description  of  a  foreign  bill  protest  is  not  necessary. 
Wittich  V.  First  Nat.  Bank  of  Pensacola,  20  Fla.  843.  Sec  Sec. 
189. 

§  186.  Within  what  time  a  check  must  be  presented. 
— A  check  must  1)C  presented  for  payment  within  a  reason- 
al)le  time  after  its  issue  or  the  drawer  will  be  discharged 
from  liability  thereon  to  the  extent  of  the  loss  caused  by  the 
delay  (a). 

(d)  Tlic  holder's  laches  in  presenting  a  check  for  payment  con- 


142  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

stitutcs  no  defense  in  an  action  against  the  drawer  unless  he  is 
damaged  by  the  delay,  and  then  only  to  the  extent  of  his  loss.     A 
eheok  purports  to  be  made  upon  a  deposit  to  meet  it,  and  pre- 
supposes funds  of  the  drawer  in  the  hands  of  the  drawee.     But 
if  the  drawer  has  no  such  funds  at  the  time  of  drawing  his  check, 
or  subsequently  withdraws  them,  he  commits  a  fraud  upon   the 
payee,  and  can  suffer  no  loss  or  damage  from  the  holder's  delay 
in  respect  to  presentment  or  notice.     In  such  case  he  is  liable  and 
cannot  insist  upon  a  formal  demand  or  notice  of  non-payment. 
First  National  Bank  of  Portland  v.  Linn  County  National  Bank, 
30  Oregon  296;  Industrial  Bank  of  Chicago  v.  Bowes,  165  111.  70. 
For  instances  of  unreasonable  delay  see  Industrial  Trust,  Title  and 
Savings  Co.  v.  Weakley,  103  Ala.  458 ;  Gifford  v.  Hardell,  88  Wis. 
538 ;  First  National  Bank  of  Wymore  v.  Miller,  43  Neb.  791 ;  Comer 
V.  Dufour,  95  Ga.  376;  Grange  v.  Eeigh,  93  Wis.  552;  Western 
Wheeled  Scraper  Co.  v.  Sadilek,  50  Neb.  105;  Gregg  v.  Beane,  69 
Vt.  22 ;  Holmes  v.  Koe,  62  Mich.  199.    For  instances  of  presentment 
in  due  time,  see  Loux  v.  Fox,  171  Pa.  St.  68;  Willis  v.  Finley,  173 
Pa.     St.     28;     First     Nat.     Bank     v.     Buckhannon     Bank,     80 
Md.    475;     Lloyd    v.    Osborne,    92    Wis.     93;     Bell    v.    Alexan- 
der,   21    Gratt.    1;    Purcell    v.    Allemong,    22    Gratt.    739.     But 
while,  as  between  the  holder  and  drawer  of  a  check,  presentment 
may  be  made  at  any  time,   and  delay   in  presentment   does   not 
discharge  the  drawer,  unless  loss  has  resulted  to  him,  a  different 
rule  obtains  as  between  holder  and  indorser.     The  holder,  on  ac- 
cepting the  check,  assumes  the  obligation  to  present  the  same  for 
payment  within  the  time  prescribed  by  law,   and  if  payment  is 
refused  to  give  notice  of  non-payment.     A  failure  to  do  this  dis- 
charge  the   indorser   from   liability   as    such   irrespective   of   any 
question  of  loss  or  injury.     Carroll  v.  Swift,  128  N.  Y.  19.     It  is 
not  clear  whether  the  death  of  the  drawer  revokes  the  authority 
of  tlio  l);ink  to  pay  a  check.    There  is  no  decision  directly  in  point, 
and  the  views  of  the  text  writers  differ.     To  meet  the  difficulty, 
the  original  draft  of  the  Negotiable  Instruments  Law  submitted 
to  the  commissioners  contained  a  provision  (which  was  taken  from 
the  statute  of  Massachusetts)  as  follows:  "  The  death  of  the  drawer 
does  not  operate  as  a  revocation  of  the  authority  to  pay  a  check, 
if  the  check  is  presented  for  payment  within  ten  days  from  the 
date  thereof."     But  it  was  thought  by  the  conference  of  commis- 
sioners that  this  would  be  objected  to  in  some  of  the  States  because 
of  the  effect  it  might  have  on  the  estates  of  decedents. 


PROMISSORY     NOTES     AXD    CIIFXKS.  I43 

187.  Certification  of  check  ;  effect  of. —  Where  a 
check  is  certified  by  the  bank  on  which  it  is  drawn  the  certi- 
fication is  equivalent  to  an  acceptance  (a). 

(a)  See  Merchants'  Bank  v.  State  Bank,  10  Wall.  648 ;  Cooke  v. 
State  Nat.  Bank,  52  N.  Y.  9G;  Farmers'  and  Mechanics'  Bank  v. 
Butchers'  and  Drovers'  Bank,  IG  N.  Y.  125.  The  certification  does 
not  admit  the  genuineness  of  the  indorser's  signature.  First  Nat. 
Bank  v.  Northwestern  Nat.  Bank,  152  111.  29G.  As  to  the  Habilities 
incurred,  see  section  112. 

§  188.  Effect  where  the  holder  of  check  procures  it 
to  be  certified.— \\  here  the  holder  of  a  check  procures 
it  to  be  accepted  or  certified  the  drawer  and  all  indorsers  are 
discharged  from  lial)ility  thereon  (a). 

n 

(a)  See  Minot  v.  Kuss,  156  Mass.  458;  Metropolitan  Bank  v. 
Jones,  137  111.  634;  Meridian  Nat.  Bank  v.  First  Nat.  Bank  (Ind.), 
33  N.  E.  Eep.  247 ;  First  Nat.  Bank  v.  Leach,  52  N.  Y.  350.  The 
bank,  for  its  own  protection,  usually  charges  up  the  check,  when 
certified,  to  its  depositor;  and,  as  the  drawer  cannot  thereafter 
check  against  the  same  fund,  it  would  be  unjust  that  the  money 
should  be  left  in  the  bank  at  his  risk  and  he  remain  liable  upon  the 
extended  check.  Bank  v.  Carter,  88  Tenn.  279.  But  where  the 
check  is  certified  when  delivered  it  does  not  constitute  payment 
any  more  than  an  uncertified  check;  and  if  it  is  presented  promptly 
and  dishonored,  the  loss  must  fall  upon  the  drawer.  Born  v.  First 
Nat.  Bank,  123  Ind.  78;  Cincinnati  Oyster  &  Fish  Co.  v.  Nat.  La- 
fayette Bank,  51  Ohio  St.  106 ;  Bank  v.  Carter,  supra. 

§  189.  When  check  operates  as  an  assignment. —  A 
check  of  itself  does  not  operate  as  an  assignment  of  any  part 
of  the  funds  to  the  credit  of  tlie  drawer  with  the  bank,  and 
the  bank  is  not  liable  to  the  holder,  unless  and  until  it  accepts 
or  certifies  the  check  (a). 

(fl)  As  to  this  there  is  considerable  conflict  in  the  authorities. 
The  rule  adopted  in  the  act  is  support^^d  by  the  weight  of  authority. 
See  Bank  v.  :Millard,  10  Wall.  152 ;  Bank  v.  Schuler,  120  U.  S.  511 ; 
Florence  Mills  Co.   i\  Brown,  124  U.  S.  385;  First  Nat.  Bank  v. 


144  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

Whitman,  94  U.  S.  343,  344;  St.  L.  &  S.  F.  Ry.  Co.  v.  Johnston, 
133  U.  S.  566;  Attorney-General  v.  Continental  Life  Insurance  Co., 
71  N.  Y.  325,  330;  First  Nat.  Bank  of  Union  Mills  v.  Clark,  134 
N.  Y.  368 ;  O'Connor  i'.  Mechanics'  Bank,  124  N.  Y.  324 ;  Maginn  v. 
Dollar  Savings  Bank,  131  Pa.  St.  362;  Saylor  v.  Bushong,  100 
Pa.  St.  27;  Covert  v.  Rhodes,  48  Ohio  St.  66;  Cincinnati  H.  & 
D.  R.  R.  Co.  V.  Metropolitan  Nat.  Bank,  54  Ohio  St.  60 ;  Pickle  v. 
People's  Nat.  Bank,  88  Tenn.  380 ;  Boetcher  v.  Colorado  Nat.  Bank, 
15  Col.  16;  Hopkinson  v.  Foster  L.  R.,  18  Eq.  74.  Contra:  Fon- 
ner  v.  Smith,  31  Neb.  107;  Munn  v.  Burch,  25  111.  35;  Bank  v. 
Patton,  109  111.  479,  485;  Doty  v.  Caldwell  (Tex.),  38  S.  W.  Rep, 
1025;  Nat.  Bank  of  America  v.  Nat.  Bank  of  ■  111.  164  111.  503. 
But  while  the  mere  making  and  delivery  of  a  check  in  the  ordinary 
course  of  business  does  not  operate  as  an  assignment  of  the  fund, 
it  is  yet  competent  for  the  parties  to  create  such  an  assignment 
by  a  clear  agreement  or  understanding,  oral  or  otherwise,  in  addi- 
tion to  the  giving  of  the  check  that  such  shall  be  the  effect  of  the 
transaction.  Fourth  Street  National  Bank  v.  Yardley,  165  U.  S. 
634;  Throop  Grain  Cleaner  Co.  v.  Smith,  110  N.  Y.  83,  88. 


CHAPTER  IV. 

General   Provisions. 

ARTICLE  I.* 

Section  190.  Short  title. 

191.  Definitions  and  meaning  of  terms. 

192.  Person  primarily  lial)le  on  instrument. 

193.  Reasonable  time,  wliat  constitutes. 

194.  Time,  how  com])Ute(l ;  when  last  day  falls  on 

holiday. 

195.  Application  of  chapter. 

196.  Rule  of  law  merchant;  wlicn  governs. 

197.  Laws  repealed. 

198.  When  to  take  efifect. 

'"^  The  numbers  of  the  sections  of  this  article  in  other  States  than 
Pennsylvania  are  as  follows:  Colorado.  Massachusetts,  North  Carolina, 
North' Dakota,  Utah,  Virginia  and  Washington,  igo-196;  New  York, 
1-7;  JNTarvland,  i.i-iQ;  Oregon,  190-192;  Rhode  Island,  1-7;  Wisconsm, 
1675.  In  Connecticut,  District  of  Columbia,  Florida  and  Tennessee 
these  sections  arc  not  numbered. 


GENERAL     I'ROVLSIOXS.  1 45 

§  190.  Short  title.— This  act  shall  be  known  as  the 
negotiable  instruments  law  (a). 

(d)  'J'lio  law  is  cfdifineJ  to  ueii'otiable  insti'umeiits.  Xo  attempt  is 
made  to  deal  with  instruments  which  are  non-negotiable;  and  they 
are  not  governed  by  the  statute.  In  determining  whether  the 
rules  of  the  statute  will  apply  to  any  pai'ticular  instrument,  it  is 
first  necessary  to  ascertain  whether  such  instrument  is  negotiable, 
according  to  the  terms  of  the  statute.  In  many  instances  the 
ruk'3  will  be  the  same  for  instruments  of  either  kind;  but  that 
is  not  because  instruments  which  are  non-negotiable  are  governed 
by  the  statute,  but  because  the  statute  is  a  codification  of  common 
law  rules  which  before  its  adoption  applied  equally  to  both  classes 
of  instruments.  In  other  words,  a  negotiable  instrument  is  gov- 
erned by  the  statute  and  a  non-negotiable  instrument  by  the 
rules  of  the  common  law,  though  frequently  these  rules  will  be 
the  same.  For  exaniitlc,  if  a  note  drawn  payable  at  a  bank  contains 
terms  which  render  it  non-negotiable,  the  provision  of  section  87, 
that  "where  the  instrument  is  made  payable  at  a  bank  it  is  equiv- 
alent to  an  order  to  the  bank  to  paj^  the  same  for  the  account  of 
the  principal  debtor  thereon,"  would  not  apply;  but  the  case  would 
be  governed  by  the  rule  of  the  common  la\v,  which  is  the  same  as 
the  statutory  rule  in  some  of  the  States,  but  different  in  others. 
This  distinction  must  be  carefullj'  borne  in  mind,  or  much  con- 
fusion will  result. 

§191.  Definitions  and  meaning  of  terms. — In  this  act, 
unless  the  context  otherwise  requires: 

"  Acceptance"  means  an  acceptance  completed  by  delivery 
or"  notification. 

"  Action"  includes  counter-claim  and  set-off. 

"  Bank"  includes  any  person  or  association  of  persons 
carrying  on  the  business  of  banking,  whether  incorporated 
or  not. 

"  Bearer"  means  the  person  in  possession  of  a  bill  or  note 
which  is  payable  to  bearer. 

"Bill"  means  bill  of  exchange,  and  "  note"  means  nego- 
tiable promissory  note. 

"  Delivery"  means  transfer  of  possession,  actual  or  con- 
structive, from  one  person  to  another. 


146  THE    NEGOTIABLE    INSTRUMENTS    LAW. 

"  Holder"  means  the  payee  or  indorsee  of  a  bill  or  note, 
who  is  in  possession  of  it.  or  the  bearer  thereof. 

"  Indorsement"  means  an  indorsement  completed  by 
delivery. 

"  Instrument"  means  negotiable  instrument. 

'■  Issue"  means  the  first  delivery  of  the  instrument,  com- 
plete in  form,  to  a  person  who  takes  it  is*  a  holder. 

"  Person"  includes  a  body  of  persons,  whether  incorpo- 
rated or  not. 

"  Value"  means  valuable  consideration. 

"  Written"  includes  printed,  and  "  writing"  includes 
print. 

§  192.     Person    primarily   liable    on    instrument. — The 

person  "  primarily"  liable  on  an  instrument  is  the  person 
who  by  the  terms  of  the  instrument  is  absolutely  required 
to  pay  the  same.  All  other  parties  are  ''  secondarily" 
liable  (a). 

(a)  This  section  is  to  be  construed  in  connection  with  section  37, 
which  provides  that  "  no  person  is  lial)le  on  the  instrument  whose 
signature  does  not  appear  thereon ;"  and  also  with  section  211, 
which  provides  that  "  the  drawee  is  not  liable  on  the  bill  unless 
and  until  he  accepts  the  same;"  and  with  section  325,  which  pro- 
vides that  "the  bank  is  not  liable  to  the  holder  unless  and  until 
it  accepts  or  certifies  the  check."  These  are  not,  by  the  terms  of 
the  instrument,  absolutely  required  to  pay  the  same  until  such 
acceptance  or  certification. 

§  193.  Reasonable  time,  what  constitutes. — In  deter- 
minins:  what  is  a  "  reasonable  time"  or  an  "  unreasonable 
time."  regard  is  to  be  had  to  the  nature  of  the  instrument, 
the  usage  of  trade  or  business  (if  any)  with  res])ect  to  such 
instruments,  and  the  facts  of  the  particular  case  (a). 

(a)  Where  the  facts  are  doubtful  or  disputed,  the  question  of  rea- 
sonable time'  is  a  mixed  question  of  law  and  fact.  But  when  the 
facts  are  clear  and  undisputed,  the  question  is  one  of  law  for  the 

*  Error  in  engrossirg  for  "  as." 


GENERAL    PROVISIONS.  I47 

court.  rrescott  Hank  v.  Covc-rly,  7  Gray,  217;  Gilmore  v.  Wilbur, 
12  Pick.  124;  Ilolbrook  r.  Burt,  22  Pick.  555;  Northwestern  Coal 
Co.  V.  Bowman,  69  Iowa,  153;  Aymar  v.  Beers,  7  Cow.  705;  Tomliu- 
sou  Carriage  Co.  v.  Kinsella,  31  Conn.  273. 

§  194.  Time,  how  computed  ;  when  last  day  falls  on 
holiday.—  Where  the  day,  or  the  last  day,  for  doing  any  act 
herein  re(juired  or  permitted  to  be  done  falls  on  Sunday  or 
on  a  holiday,  the  act  may  be  done  <  m  the  next  succeeding 
secular  or  business  day. 

§195.  Application  of  chapter.— The    provisions    of    this 

act  do  not  apply  to  negotiable  instruments  made  and 
delivered  ])rior  to  the  passage  hereof. 

§  196.  Law  merchant ;  when  governs.— in  any  case  not 
provided  for  in  this  act  the  rules  of  the  law  merchant  shall 
govern. 

§  197.  Laws  repealed.— All  acts  or  parts  of  acts  incon- 
sistent herewith  be  and  the  same  are  hereby  repealed. 

§  198.  When  to  take  effect.— This  act  shall  take  effect 
on  the  first  Monday  of  September.  Anno  Domini  nineteen 
hundred  and  one. 


INDEX. 


(The  references  are  to  pages.) 


ACCEPTANCE,  meaning  of  term,  145. 
wluit  it  is,  117,  118. 
must  be  in  writing,  118. 
must  be  signed,  118. 

holder  may  require  it  to  be  on  face  of  bill,  118. 
must  be  for  payment  in  money,  118. 
is  new  contract,  118. 
form  of,  118. 

signature  of  drawee  sufficient,  118. 
by  separate  instrument,  118. 
when  acceptance  on  separate  instrument  binds  acceptor, 

118. 
promise  to  accept  deemed  acceptance,  119. 
by  telegraph,  119. 

by  what  law  promise  to  accept  governed,  119. 
at  common  law  oral  promise  was  sufficient,  119. 
*  acceptance  by  agent,  119. 

time  allowed  drawee  in  wliidi  to  accept,  120. 

when  retention  of  bill  amounts  to  acceptance,  120. 

where  bill  overdue,  120,  121. 

after  bill  dishonored,  120,  121. 

of  incomplete  bill,  120,  121. 

date  of  acceptance,  120. 

kinds  of  acceptance,  121. 

what  constitutes  general  acceptance,  121. 

qualified  acceptance,  121,  122. 

conditional,  122. 

local,  122. 

partial,  122. 

agent  cannot  take  qualified  acceptance,  122. 

executor  has  no  authority  to  accept,  125,  126. 

duty  of  holder  where  bill  dishonored  by  non-acceptance, 

12G. 


150  INDEX. 

ACCEPTANCE— Continued. 

when  bill  dishonored  by  non-acceptance,  126. 
what  bills  must  be  protested  for  iion-acceptauce,  127,  128. 
of  bills  in  set,  138. 
ACCEPTANCE  FOE  HOXOR,  when  bill  may  be  accepted  for 
honor,  132,  133. 
how  made,  ]33. 
for  part  of  sum,  133. 
for  different  parties,  133. 

when  acceptance  does  not  state  for  whose  honor  made,  133. 
agreement  of  acceptor  for  honor,  133. 
liability  of  acceptor  for  honor,  133. 
maturity  of  bill  payable  after  sight  accepted  for  honor, 

134. 
how  presentment  for  payment  made  to  acceptor  for  honor, 

134. 
dishonor  of  bill  accepted  for  honor,  135. 
when  delay  in  making  presentment  excused,  134,  135. 
ACCEPTOR,  by  accepting  admits  existence  of  drawer,  61. 
admits  genuineness  of  drawer's  signature,  61,  62. 
admits  drawer's  capacity  to  draw,  61. 
admits  authority  to  draw,  61. 
admits  capacity  of  corporation  to  draw  bill,  {j2. 
admits  capacity  of  married  woman,  62. 
admits  capacity  of  infant,  62. 
may  not  show  that  drawer  is  a  lunatic,  62. 
not  presumed  to  know  sig-nature  of  indorser,  62. 
not  presumed  to  know  handwriting  in  body  of  bill,  62. 
liability  of  acceptor,  61-63. 

demand  of  payment  not  necessary  in  order  to  charge,  72. 
when  acceptor  insolvent  bill  may  be  protested  for  better 
security,  131. 
ACCEPTOPt  FOR  HONOR,  liability  of  acceptor  for  honor,  105. 

agreement  of  acceptor  for  honor,  133. 
ACCOMMODATION  PAPER  no  implied  warranty  that  bill   is 
not,  67. 
notes  miitually  exchanged  are  not,  37. 

payment  of  by  party  accommodated  discharges  paper,  200. 
ACCOMMODATION  PARTIES,  li^ibility  of,  36. 
right  to  retract,  37. 
right  to  impose  conditions,  38. 
discharge  of  by  diversion  of  instrument,  37. 


INDEX.  151 

ACCOMMODATION  IWRTIEH— Continued. 

corporations  cannot  make,  ^^7. 

rights  of  on  payment  of  instrument,  110. 
ACTION,  meaning  of,  14.k 

restrictive  indorsement  confers  right  to  bring,  43. 
AGENT,  signature  by,  28,  29. 

authority  of,  28. 

how  authority  shown,  28. 

liability  of  person  signing  as  agent,  28,  71. 

may  give  notice  of  dishonor,  88,  89. 

notice  of  dishonor  may  be  given  to,  92. 

cannot  take  qualified  acceptance,  122,  123. 

duty  of  to  present  bill  for  acceptance,  123,  124. 

holder  may  require  production  of  his  authority  to  accept, 
125. 
ALTERATION,  eifect  of,  112,  113. 

holder  in  due  course  may  enforce  instrument  according  to 
original  tenoi',   112. 

what  constitutes  a  material  alteration,  113. 

burden  of  explaining,  112,  113. 

pleading  and  evidence,  113. 

as  to  date,  113,  114. 

as  to  sum  payable,  113,  114. 

as  to  time  of  payment,  113,  114. 

as  to  place  of  payment,  113,  114. 

as  to  number  of  parties,  113,  114. 

as  to  relation  of  parties,  113,  114. 

as  to  medium  of  payment,  113,  114. 

addition  of  place  of  payment,  113,  114. 

other  changes,  113,  114. 
AMBIGUOUS  INSTUU:\rENT,  construction  of,  25-27. 
ANTECEDENT  DEBT,  constitutes  value,  32-34. 
ANTEDATED,  instrument  not  invalid  because,  21. 
ASSIGNMENT,  bill  is  not,  115. 

when  bill  may  amount  to,.  11.").  IIG. 

check  is  not,  143,  144. 

when  check  may  amount  to,  144. 
ASSUMED  NAME,  persons  signing  in.  27. 
ATTORNEY'S  FEE,  provision  for,  in.  11. 

BANK,  meaning  of,  145. 

instrument  payable  at  equivalent  to  order  to  pay,  85. 


152  INDEX. 

BAXK — Contin  ued. 

presentment  of  instrument  payable  at,  77,  78. 

duty  of  to  present  bill  for  acceptance,  123,  124. 

liability  of  on  certified  check,  14.']. 

not  liable  on  check  unless  it  accepts  or  certifies  the  same, 
143,  144. 
BANK  NOTES,  note  payable  in,  17. 
BEARER,  meaning-  of  term,  145. 

instrument  must  be  payable  to  or  order,  19. 

when  instrument  be  payable  to,  19-21. 

instrument  payable  to  person  named  or  bearer,  19. 

instrument  payable  to  fictitious  person,  19. 

when  payee  not  name  of  any  i3erson,  19. 

when  indorsed  in  blank,  19. 

instrument  payable  to  cash  is  payable  to,  20. 

instrument  payable  to  sundries  is  payable  to,  20. 

instrument  payable  to  estate,  20. 

indorsement  of  instniment  payable  to,  45,  69. 

in  some  States  indorsement  required,  69. 
BILL,  meaning  of  term,  145. 
BILLS  IN  A  SET  constitute  one  bill,  137. 

rights  of  holder  where  different  parts  are  negotiated,  137, 
138. 

liability  of  indorser,  138. 

acceptance  of,  138.  / 

payment  of,  138. 

effect  of  discharging  one  of  a  set,  138. 
BILL  OF  EXCHANGE,  term  "  bill"  means  bill  of  exchange,  145. 

ambiguous  instrument  may  be  considered  either  bill  or 
note,   26. 

definition  of,  115. 

is  not  an  assignment,  115. 

where  drawer  and  drawee  are  same  person,  116. 

may  be  addressed  to  two  or  more  drawees,  116. 

but  not  to  two  or  more  in  the  alternative,  116. 

inland  bill,  what  constitutes,  116. 

foreign  bill,  what  constitutes,  116. 

when  bill  may  be  treated  as  promissory  note,  116. 

when  bill  may  amount  to  an  assignment,  116. 

referee  in  case  of  need,  117. 
BLANKS,  when  may  be  filled,  22. 


INDEX. 


153 


BLANKS — Continued. 

when  improperly  filled,  22,  23. 

no  authority  to  fill  wlicrc  iiistruinent  has  not  been  deliv- 
ered, 24. 
BOHEMIAN  OATS  NOTES,  provisions  as  to,  17. 
BONDS,  liability  of  person  negotiating,  66,  67. 
BlfOKKIf,  liability  of,  71. 
]]L'KDEN  OF  PROOF,  where  title  of  prior  party  was  defective,  59. 

CANCELLATION  discharges  instrument,  lUG. 

effect  of,  112. 

burden  of  proof,  112. 
CAPACITY,  acceptance  admits  capacity  of  drawer  to  draw  bill, 
62,  63. 

warranty  where  negotiation  by  delivery,  65,  66. 

warrant  of  by  general  indorser,  GG,  68. 
"  CASH,"  instrument  payable  to,  20. 
CASIIIEE,  instrument  payable  to,  46. 

not  disqualified  to  act  as  notary,  130. 
CERTIFICATION,  effect  of,  143. 

where  holder  has  check  certified,  143. 

where  drawer  has  check  certified,  143. 
CHECK  defined,  140. 

difference  between  check  and  bill,  141. 

presentment  and  notice  of  dishonor  necessary,  141. 

within  what  time  must  be  presented,  141,  142. 

effect  of  delay,  141,  142. 

certification  of,  143. 

is  not  assig-nment,  143,  144. 

agreement  for  assignment  by,  144. 
COLLATEKAL  SECIJEITIES,  provision  for  sale  of,  14,  15. 

must  be  tendered  with  instrument,  78. 

holder  receiving  collaterals  not  required  to  proceed  upon 
before  suing  indorser,  83. 
"  COLLECTION,"  indorsement  for,  42. 

effect  of,  42. 

liability  of  indorser,  42. 
CONDITIONAL  INDOPSEMENT,  party  paying  may  disregard 
condition,  44,  45. 

indorsee  holds  subject  to  rights  of  indorser,  44,  45. 
CONFESSION  OF  JUDG:\rFNT.  provision  for,  14.  15. 


i54 


INDEX. 


CONFLICT   OF   LAWS,  by  what  laws  demand  of  payment  de- 
termined, 73. 

by  what  hnv  vahdity  of  promise  to  accept  determined,  119, 
120. 
CONSIDEEATIOX,  presumption  as  to,  32. 

what  constitutes,  32. 

antecedent  debt  is,  30-34. 

absence  or  failure  of  is  defense,  35. 

partial  failure  of  is  defense  pro  tanto,  35. 

accommodation  parties,  3G. 

presumption  as  to  in  case  of  non-negotiable  note,  32,  140. 
COXTIXGENCY,  instrument  payable  on  is  not  negotiable,  13 
COEPOKATION  included  in  word  "  person,"  5. 

indorsement  by,  29. 

delivery  of  paper  of  by  officer  for  personal  debt,  55. 

acceptor  admits  capacity  of  to  draw,  62. 

indorser  admits  capacity  of  to  make  note,  67. 
CURRENT  MONEY,  designation  o:  particular  kind  of.  IG,  17. 

DATE,  absence  of  does  not  affect  validity  of  instrument,  16. 

presumption  as  to  date,  21,  26. 

evidence  to  show  mistake  as  to  date,  21. 

instrument  may  be  ante-dated,  21. 

may  be  post-dated,  21. 

when  date  may  be  inserted,  22. 

insertion  of  wrong  date,  22. 

alteration  of  date,  113,  114. 

from  what  date  law  takes  effect,  147. 
DAYS  OF  GRACE,  abolished,  84. 

rule  in  Wisconsin,  84. 

rule  in  North  Carolina,  84. 

restored  in  Massachusetts,  84,. 
DEFENSES,  when  instrument  subject  to,  57-59. 

nature  of,  58. 

who  liable  to,  57-58. 
DELAY,  when  delay  in  presenting  for  payment  is  excused,  80,  81. 
in  giving  notice  of  dishonor,  101,  102. 

in  presenting  check,  141,  142. 
DELIVERY,  meaning  of  term,  145. 

of  incomplete  instrument,  24. 
contract  revocable  until  delivery,  24. 


INDEX.  155 

DELIVERY— Continued. 

presumption  as  to  delivery,  24,  25. 

necessary  to  convey  title,  39. 

evidence  to  show  terms  of  delivery,  40. 

is  neg-otiation  of  instrument  payable  to  bearer,  39. 

of  bill  or  check  implies  representation  that  drawee  is  in 
funds,  62,  63. 

warranty  where  negotiation  by  delivery,  62,  63. 
DEMAND,  INSTRUMENT  PAYABLE   ON,  instrument  must 
be  payable  on  or  at  determinable  future  time,  9. 

instrument  expressed  to  be  payable  on,  17. 

payable  at  sight,  17. 

payable  on  presentaticui,  17. 

when  no  time  expressed,  17. 

instrument  issued,  etc.,  when  overdue  is  payable  on  de- 
mand, 17. 

distinction  between  and  instruments  payable  on  demand 
and  at  sight,  18. 

when  words  "  on  demand"  may  be  added,  17. 

legal  intendment  cannot  be  changed  by  parol,  18. 

instrument  payable  on  demand  negotiated  an  unreasonable 

time  after  its  issue,  52. 

overdue  bill  is  payable  on,  IS,  74. 

when  instrument  payable  on  demand  must  be  presented, 
73-75. 
DETERM1NA15LK  FUTURE  TIME,  instrument  must  be  payable 
at,  9. 

what  is,  13. 

fixed  period  after  date  or  sight  is,  13. 

on  or  before  fixed  time  is,  \'.). 

on  or  after  event  certain  to  happen  is,  13. 
DISCHARGE  OF  INSTRUMENT  by  payment  on  behalf  of  prin- 
cipal debtor,  106. 

where  principal  debtor  becomes  holder  after  maturity,  106. 

by  cancellation,  I'Hi. 

by  other  act,  106. 

by  payment  by  party  accommodated,  106. 

of  one  part  of  a  bill  drawn  in  a  set,  13S,  139. 
DISCHARGE  OF  PARTY  SECONDARILY  LIABLE  by  dis- 
charge of  instrument,  107. 

by  cancellation  of  signature,  107. 

by  discharge  of  prior  imrty.  107.  10«5. 


1=^6 


INDEX. 


DISCHAEGE    OF   PARTY    SECONDARILY    LIABLE— Con- 

tinued. 

by  tender  by  prior  party,  107,  108. 

by  release  of  principal  debtor,  107. 

where  holder  applies  collateral  security,  108. 

where  holder  has  means  of  satisfaction,  108. 

reservation  of  right  against  surety,  107,  108. 

extension  of  time,  when  will  discharge,  107,  109. 

mere  indulgence  will  not  discharge,  109. 

where  holcer  allows  statute  of  limitations  to  run  against 
principal  debtor,  108. 
DRAWEE  must  be  named  or  indicated  in  instrument,  9. 

not  liable  until  acceptance,  115. 

bill  may  be  addressed  to  two  or  more,  116. 

but  not  to  two  or  more  in  the  alternative,  IIG. 

time  allowed  in  which  to  accept,  120. 

retaining  or  destroying  bill  is  liable  as  acceptor,  120. 
DRAWER,  instrument  payable  to  order  of,  18. 

engagement  of  by  drawing  bill,  GL 

admission  of,  61. 

liability  of,  61. 

may  negative  liability,  61. 

existence  of  admitted  by  acceptor,  61. 

when  presentment  not  necessary  to  charge,  80. 

right  of  recourse  to,  83. 

notice  of  dishonor  must  be  given  to,  87. 

when  notice  of  dishonor  need  not  be  given  to,  103. 

when  released  by  failure  to  present  bill  for  acceptance, 
124. 

liability  of  where  bill  dishonored  by  non-acceptance,  127. 

when  protest  necessary  in  order  to  charge,  127,  128. 

of  check  discharged  if  holder  has  check  certified,  143. 
DUE  DILIGENCE,  when  question  of  law,  81,  102. 

when  question  of  fact,  81. 

what  will  constitute,  83,   84. 
DURESS,  instrument  or  signature  obtained  by,  53. 


EVIDENCE,  admissibility  of  evidence  to  show  agreement  among 

indorsers,  70. 
EXCHANGE,  provision  for,  10. 

EXHIBITION  OF  INSTRUMENT,  when  necessary,  77,  78. 
when  excused,  78. 


INDEX.  157 

FICTITIOUS  PEUSOX,  instrunifiit  payable  to  onlci-  of  is  pay- 
able to  bearer,  20,  01. 
whether  instrument  payable  to  order  of  estate  is,  20. 
presentment  for  payment  not  required  where  drawee   is 
fictitious  person,  81. 
FIGURES,  where  there  is  a  discrepancy  between  words  and  fig- 
ures, 26.  ♦ 
FISCAL  OFFICER,  instrument  payable  to,  4G. 
FOREIGN  ]3ILL,  what  is,  116. 
FOUcGED  SIGNATURE  confers  no  right,  30. 

when  party  estopped  to  allege  forgery,  30. 
FRAUD,  instrument  or  signature  obtained  by,  53. 

GENUINENESS,  warranty  of  where  negotiation  by  delivery,  66. 

warranty  of  where  negotiation  by  qualified  indorsement, 
66. 

when  warranty  of  not  implied,  66. 

warrantj'  of  by  general  indorser,  68. 

acceptor  admits  signature  of  drawer,  61,  62. 

acceptance  does  not  admit  signature  of  indorser,  61,  62. 

nor  handwriting  in  body  of  instrument,  62. 
GOLD  COIN,  note  payable  in,  17. 
GUARANTOR,  person  may  become  such,  63. 

when  proceedings  against  principal  are  necessaiy,  88. 

not  entitled  to  notice  of  dishonour,  88. 
GUARANTY,  conditional  guaranty,  83. 

HOLDER,  meaning  of  term,  146. 

may  sue  in  his  own  name,  50. 

may  receive  payment,  50. 

rights  of  where  bill  discharged  by  non-acceptance,  126, 
127. 

duty  of  where  bill  not  accepted,  126,  127. 

refusal  to  receive  payment  for  honor,  136. 

by  having  check  certified  discharges  drawer  and  indorse- 
ers,  143. 

of  check  cannot  recover  of  bank   on   check  until   it   ac- 
cepts or  certifies  the  same,  143,  144. 
HOLDER  FOR  VALUE,  what  constitutes,  34. 

ixn-son  having  lien  is,  34. 
HOLDER  IN  DUE  COURSE,  what  constitut<?s,  50-52. 

who  is  not,  50-52. 


158  IXDEX. 

HOLDEE  IX  DUE  COJJRSE— Continued. 

in  case  of  instrument  payable  011  demand,  50-52. 

where  full  amount  lias  not  been  i^aid  before  notice,  52. 

what  constitutes  notice,  53-55. 

holds  instrument  free  from  equities,  55-57. 

may  recover  full  face  value,  55. 

rights  of  person  claiining  under  holder  in  due  course,  57- 
59. 

when  burden  on  holder  to  prove  that  he  took  instrument 
in  due  course,  59-60. 
HOLDER  OF  OFFICE,  instrument  payable  to  order  of,  19. 
HOLIDAY,  when  day  for  doing  act  falls  on,  7. 

instrument  falling-  due  on,  84. 

INCOMPLETE  INSTRUMENT,  filling  blanks,  22,  23. 
not  delivered,  24. 
acceptance  of,  120,  121. 
INDORSER,  where  character  not  clear  signer  is  presumed  to  be 

an  indorser,  26,  27. 
when  person  deemed  such,  63. 
irregular  indorser,  63-65. 
admits  capacity  of  firm  to  make  note,  67. 
admits  capacity  of  corporation  to  make  note,  67. 
parol  evidence  to  vary  liability  of,  69. 
liability  of  where  paper  negotiable  by  delivery,  69,  70. 
presentment  necessary  in  order  to  charge,  72,  141. 
order  in  which  indorsers  liable,  70. 
when  presentment  for  payment  not  necessary  to  charge, 

80. 
right  of  recourse  to,  83. 
not  a  mere  surety  after  dishonor,  83. 
liability  where  collaterals  have  been  received,  83. 
holder  not  required  to  proceed  oai  collaterals  in  order  to 

charge  indorsers,  83. 
notice  of  dishonor  must  be  given  to,  87. 
when  notice  of  dishonor  need  not  be  given  to,  104. 
what  will  discharge,  107-110. 
payment  by  does  not  discharge  maker,  110,  111. 
where  released  by  failure  to  present  bill  for  acceptance, 

124. 
liability  of  where  bill  dishonored  by  non-acceptance,  126. 


INDEX.  159 

iSDOllSKll-'Coniinued. 

in  wliat  cases  protest  necessary   in  order  to  charge,  127, 
128. 

liability  of  where  he  indorses  different  parts  of  a  set,  138. 

of  check  discharged  by  delay  to  present,  141,  142. 
INDORSlvMK^'T,  meaning  of  term,  (i. 

instrument  indorsed  in  bhmk  payable  to  bearer,  20. 

by  infant,  30. 

by  corporation,  30. 

where  written,  39. 

required  for  negotiation  of  instrument  payable  to  order, 
39. 

must  be  completed  by  delivery,  39,  40. 

must  be  on  instrument,  40. 

or  on  an  allonge,  40. 

signature  alone  sufficient,  40,  41. 

must  be  of  entire  instvunieiit,  41. 

kinds  of,  41. 

special  indorsement,  41. 

indorsement  in  blank,  41. 

how  special  indorsement  converted  to  blank  indorsement, 
41. 

when  restrictive,  42. 

restrictive    indorsement   prohibiting   further   negotiation, 
42. 

restrictive  indorsement  constituting  indorsee  mere  agent, 
42. 

restrictive  indorsement  vesting  title  in  trust,  42. 

effect  of  indorsement  "  for  collection,"  42. 

restrictive  indorsement  authorizes  indorsee  to  receive  pay- 
ment, 43. 

restrictive  indorsement  authorizes  indorsee  to  bring  ac- 
tion, 43. 

restrictive    indorsement    authorizes    indorsee    to    transfer 
his  rights  as  indorsee,  43. 

effect  of  qualified  indorsement,  43,  44. 

qualified  indorsement  does  not  impair  negotiable  character 
of  the  instrument,  44. 

qualified  indorsement  does  not  throw  suspicion  on  paper, 
44. 

of  instrument  payable  to  bearer,  45. 


l6o  INDEX. 

INDOESEMENT— Conhnwed. 

where  instrument  payable  to  two  or  more,  45. 

by  cashier,  46. 

by  fiscal  officer,  46. 

where  name  misspelled,  46. 

where  payee  or  indorsee  wrongly  designated,  46. 

in  representative  capacity,  46. 

presumption  as  to  place  of,  47. 

presumption  as  to  time  of,  47. 

striking  out  indorsement,  48. 

eilect  of  striking  out  indorsement,  48. 

when  may  be  done,  48. 

transfer  without  indorsement,  48,  49. 

rights  of  transferee,  48,  49. 

prior  equities,  49. 

warranty  where  negotiation  by  qualified  indorsement,  65- 
68. 

warranty  of  title  in  case  of  qualified  indorsement,  65-68. 
INFANT,  indorsement  by,  30. 
INLAND  BILL,  what  is,  213. 

INSOLVENCY,  no  implied  warranty  that  principal  debtor  not 
insolvent,  67. 

does  not  excuse  presentment,  82. 
INSTALLMENTS,  instruments  payable  in,  10. 
INSTRUMENT,  meaning  of  term,  140. 

INTEREST,  where  instrument  does  not  specify  date  from  which 
interest  to  run,  25,  26. 

does  not  make  sum  uncertain,  10. 
ISSUE,  meaning  of  term,  140. 

JOINT  DEBTORS,  presentment  to,  80. 

JOINT  PARTIES,  two  or  more  persons  signing  "I  promise  to 

pay,"  26. 
JUDGMENT  NOTES,  14,  15. 

LAW  MERCTIANT,  when  governs,  147. 

LIABILITY,  no  one  liable  whose  signature  not  on  instrument,  27. 

of  person  signing  as  agent,  27. 

of  maker,  61. 

of  drawer,  61. 

of  acceptor,  61-63. 

of  irregular  indorser,  63-65. 


INDEX.  iGl 

LIABILITY— Continued. 

of  f>C'iK'ral  iudorser,  G8,  C9. 

of  indorse!-  where  paper  ne«-otiable  Ijy  delivery,  G5-C9. 

order  in  whieh  indorsers  liable,  70. 

of  agent  or  broker,  71. 
LIEN,  i)erson  having  is  holder  for  value,  34. 
LUNATIC,  acceptor  cannot  show  drawer  a  lunatic,  63. 

MAIL,  miscaiTiage  in,  dues  not  invalidate  notice  of  dishonor,  9G. 
MAKER,  note  payable  after  death  of,  14. 

instrument  payable  to  order  of,  18,  19,  140, 

liability  of  Gl. 

admission  of,  61. 

demand  of  payment  not  necessary  to  charoe,  72. 

liability  to  holder  where  part  payment  made  by  indorser, 
106,  107. 

MARRIED  WOMAN,  acceptor  admits  capacity  of  to  draw  bill, 

62. 
MATURITY,  option  to  pay  before,  13,  14. 

time  of,  84. 
NEGOTIABLE  INSTRUMENTS,  law  is  confined  to,  145. 

"  instrument"  means  negotiable  instrument,   146. 

must  contain  unconditional  promise,  9. 

must  be  for  payment  of  sum  certain,  9. 

must  be  for  payment  of  money  only,  9. 

must  be  in  writing,  9. 

must  be  signed  by  maker  or  drawer,  9. 

must  be  payable  on  demand  or  at  determinable  future 
time,  9. 

must  be  payable  to  order  or  bearer,  9. 

statement  of  transaction  does  not  affect  negotiable  charac- 
ter, 12,  13. 

indication  of  particular  fund  does  not  render  non-nego- 
tiable, 12. 

order  to  pay  out  of  particular  fund  not  negotiable,  12,  13. 

instrument  payable  on  contingency  not  negotiable,  13. 

provision  for  sale  of  collateral,  14,  15. 

provision  for  confession  of  judgment,  14,  15. 

waiver  of  benefits  of  law,  14,  15. 

option  to  require  something  in  lieu  of  payment  in  money, 
14,  15. 


l62  INDEX. 

NEGOTIABLE  INSTRUMENTS— Co,;/ j/u<e J. 

instrument  payable  when  certain  person  shall  become  of 

age,  14. 
omissions  not  affecting,  15-17. 
not  dated,  16. 

not  specifying  value  given,  1(5. 
not  specifying  place  where  drawn,  1(>. 
not  specifjang  place  where  payable,  16. 
bearing  seal,  16. 

provisions  as  to  collaterals,  14,  15. 

designation  of  particular  kind  of  current  money,  16,  17. 
instrument  continues  negotiable  until  discharged  or  re- 
strictively  indorsed,  47,  48. 
NEGOTIABLE  INSTRUMENTS  LAW,  short  title,  145. 
when  to  take  effect,   147. 
to  what  instruments  it  applies,  145. 
NEGOTIATION  of  post-dated  instruments,  21. 
rules  governing,  138. 
what  constitutes  negotiation,  39. 
of  instrument  payable  to  bearer,  39. 
of  instrument  payable  to  order,  39. 
by  prior  party,  49. 
party    secondarily   liable    paying   instrument   may   again 

negotiate  it,  110,  111. 
when  drawer  and  indorsers  released  by  failure  of  holder  to 

negotiate  bill,  124. 
bill  must  be  negotiated  within  reasonable  time,  73,  124. 
of  bills  in  sets,  137. 
NEW  YORK  STATE  BILLS,  note  payable  in,  17. 
NOTARY  PUBLIC,  may  make  protest,  130. 

not  disqualified  because  officer  of  bank,  130. 
presentment  must  be  by  notary  in  person,  130. 
certificate  of  as  evidence,  128-130. 
NOTE,  meaning  of  term,  146. 

NOTICE  OF  DISHONOR,  where  instrument  issued  or  negotiated 
when  overdue,  18. 
indorser  entitled  to  though  he  holds  collateral,  73. 
to  whom  must  be  given,  87,  88. 
rules  governing,  87-105. 
must  be  given  to  indorser,  87. 
must  be  given  to  drawer,  87. 
need  not  be  given  to  guarantor,  88. 


INDEX.  163 

XOTICK  OF  DISHONOR— C'on/mued 
bj'  whom  may  be  given,  SS. 
notice  by  stranger  not  sulKeient,  88. 
party  discharged  cannot  give,  88. 
drawee  who  refuses  acceptance  cannot  give,  88. 
notice  by  agent,  88,  89. 
bank  as  agent  may  give,  89. 
to  whose  benefit  notice  enures,  89. 
holder  required  to  give  notice  only  to  his  innnediate  in- 

dorser,  89. 
when  misdescription  does  not  vitiate,  90. 
when  notice  sufficient,  90. 
notice  need  not  be  signed,  90. 
omission  of  date  and  time  of  payment,  90. 
printed  notice,  91. 
signature  of  notary,  HI. 
form  of  notice,  90. 
w^hen  notice  defective,  90,  91. 
may  be  delivered  personally,  90. 
may  be  sent  by  mail,  90. 

when  sufficiency  of  notice  question  of  law,  91. 
may  be  given  to  agent,  92. 
who  deemed  agent  to  receive,  92. 
where  party  dead,  92. 
to  partners,  93. 

to  joint  parties  not  partners,  93. 
to  bankrupt,  94. 
to  assignor  for  creditors,  94. 

may  be  given  as  soon  as  instrument  dishonored,  94. 
where  parties  reside  in  same  place,  94. 
where  parties  reside  in  different  places,  95,  96. 
when  notice  deemed  deposited  in  post-office,  96,  97. 
miscarriage  in  mails  does  not  impair  validity  of  notice,  96. 
time  in  which  indorser  to  give  notice  to  prior  parties,  97. 
where  notice  to  be  sent,  98. 
when  party  adds  address  to  signature,  98. 
where  party  has  not  given  address,  98. 
where  he  lives  in  one  place  and  has  office  in  another,  98. 
where  he  is  sojourning  in  anotlu'r  place,  98. 
when  notice  actually  received  this  is  sufficient,  9>^.  09. 
waiver  of,  99. 
waiver  of  before  dishonor,  99,  100. 


164  INDEX. 

XOTICE  OF  BlSnO'KO'R—Cou tinned. 

waiver  of  after  dishonor,  99,  100. 

what  will  constitute  waiver,  99,  100. 

waiver  embodied  in  instrument,  100. 

waiver  written  over  signature,  100. 

waiver  of  protest,  what  it  includes,  101. 

when  notice  dispensed  with,  101. 

when  cannot  be  given  after  reasonable  diligence,  101,  102. 

what  will  constitute  reasonable  diligence,  101,  102. 

when  delay  excused,  102,  103. 

reliance  upon  directory,  102. 

when  notice  need  not  be  given  to  drawer,  103. 

when  notice  need  not  be  given  to  indorser,  104. 

when  instrument  has  been  previously  dishonored  by  non- 
acceptance,  104. 

effect  of  omission  to  give  notice  of  dishonor  by  non-accept- 
ance, 104,  105. 
K'OTICE  OF  EQUITIES,  Avhat  constitutes,  53-55. 

See  "  Promissory  Note." 
NOTICE,  where  transferee  receives  notice  before  payment  in  full 

for  instrument,  52. 
NOTING,  130,  131. 

OMISSIONS,  what  omissions  do  not  affect  validity  or  negotiable 

character  of  instrument,  15,  16. 
OPTION,  to  pay  before  maturity,  13,  14. 

of  holder   to   require  something   in   lieu   of   payment   in 
money,  14,  15. 
ORDER,  instrument  must  be  payable  to,  or  bearer,  9,  18,  19. 
instruments  payable  to,  9,  18,  19. 
instrument  payable  to  order  of  drawer,  18. 

maker,  18. 
drawee,  18. 

two  or  more  paj'ees,  19. 
one  of  several  payees,  19. 
instrument  payable  to  order  of  holder  of  office,  19. 
payee  must  be  named  or  indicated,  19. 
OVERDUE  INSTRUMENT  is  as  regards  parties  issuing  or  nego- 
tiating payable  on  demand,  17. 

PARTNERS,  indorser  of  firm  note  admits  capacity  of  firm  to  exe- 
cute, 67. 


INDEX.  165 

FAJiT^EllS— Continued. 

presentment  to,  137. 
PATKXT   KIGIITS,   neffotiahlc    iiistrunionts  given   for,    17. 
PAYEES,  two  or  more,  19. 

one  of  several,  19. 

when  name  not  the  name  of  any  person,  19. 

trade  or  assumed  name,  61. 

fictitious,  61. 

aeccptanee  admits  existence  of,  62. 

acceptance  admits  capacity  to  indorse,  62. 

acceptance  does  not  admit  signature  of,  62. 
PAYMENT,  instrument  must  be  for  payment  in  money,  9. 

instrument  payable  in  merchandise,  9. 

option  to  require  something  in  liou  of  pnymont  in  money, 
13,  14. 

holder  in  due  course  can  recover  face  value,  55. 

what  constitutes  payment  in  due  course,  85,  86. 

by  principal  debtor,  lOG. 

by  party  acconnnodated,  lOG. 
'by  party  secondarily  liable,  107. 

what  bills  must  be  protested  for  non-payment,  127,  128. 

bill   protested  for  non-acceptance  may  be  protested  for 
non-payment,  131. 

of  bills  in  a  set,  138. 
PAYMENT  FOR  HONOR,  who  may  make,  135. 

how  made,  135,  13G. 

preference  of  parties  offering  to  pay  for  honor,  136. 

effect  on  subsequent  parties,  136. 

where  holder  refuses  to  receive  payment,  136. 

effect  of,  136. 

declaration  before  payment,  136. 

rights  of  payer  for  honor,  137. 
PENCIL,  writing  may  be  in,  9. 
PERSON,  meaning  of  term,  6. 
PERSON  PRIMARILY  LIABLE,  who  is,  146. 

demand  of  payment  not  necessary  to  charge,  72. 
PERSON  SECONDARILY  LIABLE,  who  is,  146. 

right  of  recourse  to,  83. 
PLACE,  failure  to  specify  place  whore  drawn  does  not  affect  nego- 
tiable charact<?r,  14. 

presumption  as  to  place  of  indorsement,  47. 


l66  INDEX. 

PLACE — Continued. 

of  presentment,  what  is  proper  place,  132,  133. 
alteration  as  to  place,  113,  114. 
POST-DATED  INSTRUMENT,  negotiation  of,  21. 

instrument  not  invalid  because  post-dated,  21. 
POST-OFEICE,  what  constitutes  deposit  in,  97. 

deposit  in  post-office  box,  97. 
PRE-EXISTIXG  DEBT  constitutes  value,  32-34. 
PRESENTATION,  instrument  payable  on  is  payable  on  demand, 

17. 
PRESENTMENT  FOR  ACCEPTANCE,  in  what  cases  neces- 
sary, 123. 
where  bill  payable  after  sight,  123. 
where  requii'ed  to  fix  maturity,  123. 
not  necessary  where  payable  at  day  certain  or  at  fLxed 

time  after  date,  123. 
where  bill  expressly  stipulates  for,  123. 
where  biU  not  payable  at  drawee's  place  of  business  or  resi- 
dence, 123. 
when  drawer  and  indorsers  released,  124. 
duty  of  agent  to  present  bill  for  acceptance,  123,  124. 
how  presentment  made,  124. 
must  be  by  or  on  behalf  of  holder,  124. 
must  be  at  reasonable  hour,  124. 

on  business  day,  124. 
before  bill  is  overdue,  124. 
must  be  to  drawee  or  some  person  authorized  to  act  for 

him,  124. 
where  there  are  two  or  more  payees  not  partners,  124. 
where  drawee  is  dead,  125. 
where  drawee  is  bankrupt  or  insolvent,  125. 
on  what  days  may  be  made,  125. 
where  time  insufficient,  120. 
when  excused,  126. 
excused  where  drawee  dead,  126. 
excused  where  drawee  has  absconded,  120. 
excused  where  drawee  is  fictitious  person,  126. 
excused  where  drawee  has  not  capacity  to  contract,  126. 
excused  when  cannot  be  made  after  reasonable  diligence, 

126. 
PRESENTMENT  FOR  PAYMENT,  of  instrument  issued  or  ne- 
gotiated when  overdue,  18. 


IXDEX.  167 

PKESENTMEXT  FOR  FAYm^ST—Cojitinued. 

by  what  laws  detoriniiied,  72, 

necessary  in  order  to  c-harffe  drawer  or  indorsers,  72. 

not  necessary  to  charye  party  primarily  liable,  72. 

where  instrument  payable  on  demand,  73-75. 

what  constitutes  sufficient  presentment,  75,  76. 

must  be  made  on  day  of  maturity,  73. 

holder  has  entire  day  in  which  to  make,  73. 

what  sufficient  evidence  of  authority  to  receive  payment. 
75. 

place  of  presentment,  76,  77. 

where  principal  debtor  dead,  79. 

where  maker  or  acceptor  has  abandoned  place  of  business, 
76. 

where  instrument  payable  at  bunk,  78. 

collaterals  must  be  tendered  with  instrument,  78. 

instrument  must  be  exhibited,  77,  78. 

what  will  excuse  exliibition,  78. 

where  persons  primarily  liable  are  partners,  79. 

to  joint  parties  who  are  not  partners,  80. 

when  not  required  to  charge  indorser,  80. 

when  not  required  to  charge  drawer,  80. 

when  delay  excused,  80,  81. 

waiver  of,  81-83. 

what  will  amount  to  waiver,  81-83. 

where  drawee  is  fictitious  person,  81. 

when  dispensed  with,  81-83. 

computation  of  time,  84,  85. 

instrument  falling  due  on  Sunday,  84. 

on  holiday,  84. 
on  Saturday,  84. 

not   necessary   where   bill    has   been   dishonored   by    non- 
acceptance,  127. 

how  made  to  acceptor  for  honor,  134. 

within  what  time  check  must  be  presented,  141,  142. 

effect  of  delay,  141,  142. 
PRIXCIPAL  not  liable  unless  his  signature  appears  on  instru- 
ment, 27. 
PRINTED  PROVTSIOXS,  written  provisions  prevail  over,  25. 
"  PROCrRATTOX,"  signature  by,  20,  30. 
PRO:\rTSSORY  XOTE.  term  "note"  means,  146. 

note  given  for  purchase  price  of  goods,  13. 


I 68  INDEX. 

PROMISSORY  SOTE— Continued. 

payable  on  or  after  death  of  maker,  14. 
payable  in  gold  coin,  17. 
ill  bank  bills,  IT. 
in  New  York  State  bills,  17. 
in  Florida  funds,  17. 
in  specie,  17. 

given  for  patent  right,  17. 
"  Bohemian  oats"  notes,  17. 

ambiguous  instrument  may  be  considered  bill  or  note,  26. 
when  bill  may  be  treated  as,  116. 
drawn  to  maker's  own  order,  140. 
defined,  140. 

non-negotiable  notes,  32. 
PROTEST,  what  waiver  of  includes,  101. 
construction  of  term,  101. 
construction  of  term  in  i^leading,  101. 
may  be  made  in  case  of  dishonor  of  any  instrument,  105. 
not  required  except  in  case  of  foreign  bills,  105. 
necessary  in  case  of  foreign  bills,  127. 
unnecessary  unless  bill  appears  on  its  face  to  be  a  foreign 

bill,  127. 
how  made,  128-130. 

must  be  annexed  to  bill,  128. 

must  be  under  hand  of  notary,  128. 

must  be  under  seal  of  notary,  128. 

when  to  be  made,  130. 

must  specify  time  and  place  of  presentment,  128. 

must  specify  fact  that  presentment  was  made,  128. 

cause  for  protesting  the  bill,  128. 

demand  made  and  answer  given,  128. 

manner  of  presentment,  128. 

may  be  made  by  notary  public,  130. 

may  be  made  by  resident,  130. 

presentment  must  be  by  notary  himself,  130. 

where  made,  131. 

when  dispensed  with,  131. 

for  better  security,  131. 

both  for  non-acceptance  and  non-payment,  131. 

extending  protest,  130,  131. 

before  maturity  where  acceptor  insolvent,  131. 

where  bill  is  lost,  132. 


INDEX.  169 

VF^OTEST— Continued. 

of  bill  accepted  for  honor,  135. 

KEASONABLE  DILIGENCE,  what  will  constitute  in  case  of 
notice  of  dishonor,  101,  102. 
See  Due  Diligenck. 
REASONABLE  HOUR,  what  is,  75,  76. 
KEASONABLE  Ti:\IE,  what  constitutes,  75,  76,  146. 
when  question  of  law,  1-iG,  147. 
when  question  of  fact,  146,  147. 
in  case  of  instrument  payable  on  demand,  52. 
instrument  payable  on  demand  must  be  presented  within, 
73-75. 
REFEREE  IN  CASE  OF  NEED,  215 
RENUNCIATION,  effect  of,  112. 

how  made,  112. 
REPEAL,  laws  repealed,  147. 

REPRESENTATIVE  CAPACITY,  person  indorsing  in  may  neg- 
ative personal  liability,  46,  47. 

SATURDAY,  instrument  falling  due  on,  84. 
SEAL  does  not  afiFect  negotiable  character,  16,  17. 

of  corporation,  17. 
SHORT  TITLE  of  negotiable  instruments  law,  145. 
SIGHT,  instrument  payable  at  sight  is  payable  on  demand,  17. 
SIGNATURE,  no  person  liable  whose  signature  does  not  appear 
on  the  instrument,  27. 

by  agent,  28. 

by  "  procuration,"  29. 

forged  signature,  30. 

acceptance    admits    genuineness    of    drawer's    signature, 
61,  62. 
SPECIE,  note  payable  in,  17. 
STRIKING  OUT  INDORSEMENT,  effect  of.  78. 

when  may  be  done,  78. 
SUM  CERTAIN,  what  is,  10. 
SUNDAY,  when  day  for  doing  act  falls  on,  147. 

instrument  falling  due  on,  84. 
"  SUNDRIES,"  instrument  payable  to,  20. 

TENDER,  ability  and  willingness  at  place  of  payment  equal  to,  72. 
TER:\rS,  when  sufficient,  21. 


170  INDEX. 

TIME,  how  computed,  147. 

when  statute  to  take  effect,  147. 

of  indorsement,  47. 
TITLE,  short  title  of  act,  145. 

burden  of  proof  where  title  of  prior  party  defective,  59. 

when  defective,  53. 

warranty  of  where  negotiation  by  delivery,  65-G8. 

warranty  of  where  negotiation  by  qualified  indorsement, 
65-68. 

warranty  of  by  general  indorser,  68-69. 
TEADE  NAME,  persons  signing  in,  27. 

UNCOXDITIONAL  PROMISE  OE  ORDER,  what  is,  12,  13. 

order  to  pay  out  of  particular  fund  is  not,  12,  13. 
USAGE,  regard  to  be  had  to  in  determining  question  of  reasonable 

time,    147. 
USURY,  no  implied  warranty  that  note  is  not  void  lor  usury,  67. 

VALUE,  meaning  of  tei-m,  6. 

failure  to  specify  does  not  affect  negotiable  character  of 

instrument,  16. 
what  constitutes,  32. 
pre-existing  debt  in,  32-34. 
what  constitutes  holder  for  value,  34. 
lien  on  instrument  constitutes,  34. 

WAIVER  of  benefits  of  law  by  obligor,  14,  15. 

of  presentment  for  payment,  81-83. 

what  will  amount  to  waiver  of  present  for  payment,  82,  83. 

of  notice  of  dishonor,  99,  100. 

when  embodied  in  instrument,  100,  101. 

when  written  above  signature,  100,  101. 

of  protest,  what  it  includes,  101. 
WARRANTY,  where  negotiation  by  deliveiy,  65-68. 

where  negotiation  by  qualified  indorsement,  65-68. 

of  genuineness,  66,  67,  68,  69. 

when  warranty  of  genuineness  not  implied,  66. 

of  capacity,  of  prior  parties  where  negotiation  by  delivery 

or  qualified  indorsement,  66,  67. 

no  implied  warranty  that  note  is  not  void  for  usurj%  67. 

no  implied  warranty  that  bill  is  not  accommodation  paper, 
67. 


INDEX.  171 

\yAIlJiA:sTY— Continued. 

on  sale  of  municipal  bonds,  GG,  G7,  68. 

no  implied  warranty  of  capacity  to  contract  on  sale  of 

municipal  bonds,  66,  67,  6S. 
no  implied  warranty  that  principal  debtor  is  not  insolvent, 

67. 
general  indorser  warrants,  that  instrument  is  genuine,  68. 

that  instrument  is  what  it  pur- 
ports to  be,  68. 
that  he  has  a  good  title,  G8. 
that  prior  parties  had  capacity 

to  contract,  68. 
that    instrument    is    valid    and 
subsisting,  68. 
in  case  of  instrument  indorsed  "  for  collection"  68,  69. 
"  WITHOUT  EECOUKSE,"  effect  of  term,  43,  44. 
WRITING  may  be  in  pencil,  9. 
\VRITTEN,  what  included  in  term,  146. 
WRITTEN  PROVISIONS  prevail  over  printed,  26. 


TABLE   OF   CASES. 

PAGE.- 

Adair  v.  Lenox,   15  Ore.  489 48,  58,  86 

Adams  v.  Wright,  14  Wis.  408 95.  129 

.lEtna  National  Bank  v.  Charter  Oak  Life  Ins.  Co.  50  Conn zi-  167 

V.  Fourth  National  Bank,  46  N.  Y.  82 85 

Aiken  v.  Marine  Bank,  t6  Wis.  679 9° 

Albertson  v.  Laughlin,  173  Pa.  St.  525 14 

Albrecht  v.  Atrimpler,  7  Pa.  St.  476 35 

Alger  V.  Scott,  54  N.  Y.  14 115 

Allen  V.  Rightmere,    20  Johns.    365 88 

V.  Suydam,  17  Wend.  368 124 

American  Bank  v.  Jenness,  2  Mete.  288 52 

Exchange   National   Bank  v.   New   York   Belting  etc., 

Co.,   148  N.  Y.  698 54,  55 

National  Bank  v.  Junk  Bros.,  94  Tenn.  634 94 

Ames  V.   Meriam,  98  Mass.   294 14^ 

Androscoggin  Bank  v.  Kimball,  10  Cush.  373 23 

Angle  V.  Insurance  Co.,  92  U.  S.  330 114 

Annville  National  Bank  z'.  Kettering,  106  Pa.  St.  531 100,  loi 

Armour  v.  McMichacl,  36  N.  J.  Law,  92 Z2> 

Armstrong  v.  American  Exchange  National  Bank,  133  U.  S.  433.     116 

V.  Bank,  46  Ohio  St.  412 20 

V.  National  Bank  of  Boj'ertown,  90  Ky.  431 42 

?;.  Thurston,    11    :Md.    148 82 

Arnold  v.  Dresser,  8  Allen,  435 80 

V.  Rock  River  Valley  Union  R.  R.  Co.,  5  Ducr,  207 15 

Artisans'  Bank  v.  Backus,  },6  N.  Y.  106 90 

Attorney-General  v.  Continental  Life  Insurance  Co.,  71  N.  Y.  325.     144 

Ayer  v.  Hutchins,  4  Mass.  370 5r.  59 

Aymar  v.  Beers,  7  Cow.  705 147 

Bachelor  v.  Priest,  12  Pick.  399 124 

Backus  V.   Danforth,   10  Conn.  297 9 

Bacon  v.  Burnhani,  zi  N.  Y.  614 65 

V.  Hanna,  137  N.  Y.  379 102 

V.  Page,    I    Conn.  '405 18 

Baer  v.  Leppert,  12  Plun,  516 102 

Bailey  v.  Southwestern  R.  R.  Bank,  11  Fla.  266 103.  115 


o 


1/4  TABLE     OF     CASES. 

Bank  v.  Carter.  88  Tenn.   279 143 

V.  Dibbrell,   gi    Tcnn.    301 90,    99 

V.  Looney,  99  Tenn.  278 29,  60 

V.  Millard,    10  Wall.    152 144 

V.  Patton,  109  111.  479 144 

V.  Price,   52   Iowa,   530 18 

V.  Schuler,  120  U.  S.  511 144 

V.  Simpson,  90  N.   C.  469 no 

of  Alexandria  v.  Swann,  9  Peters,  33 90,  94 

America  v.   Senior,   11   R.  I.  376 48 

British  North  America  v.  Ellis,  6  Sawyer,  98 47 

Columbia  v.  Lawrence,  i  Peters.  578 91,  92,  96,  98 

Cooperstown  v.  Woods,  2^  N.  Y.  545 91,  128 

28  N.  Y.  561 91 

England  7'.  Vagliano  (1891),  App.  Cas.  107 20 

Genessee  v.   Patchin  Bank,   13   N.   Y.   309 2)7,  46 

Jamaica  v.  Jefferson,  92  Tenn.   537 64,  70 

Metropolis   v.    First    National    Bank   of   Jersey    City,    19 

Fed.   Rep.  658 4 

IMichigan  v.  Ely,   17  Wend.  508 119 

Montgomery  County  v.  Walker,  g  S.  &  R.  229 36 

Ohio  Valley  v.  Lockwood,  13  W.  Va.  392 114 

Port  Jefferson  v.  Darling,  91  Hun,  236 93,  loi 

Rome  V.  Village  of  Rome,  19  N.  Y.  20 16 

St.  Albans  v.  Farmers'  and  Mechanics'  Bank,  10  Vt.  141.       62 

Syracuse  v.  Hollister,  17  N.  Y.  46 78 

the  State  v.  Muskingum  Bank,  29  N.  Y.  619 46 

United  States  ?'.  Bank  of  Georgia,  10  Wheat.  2>7>Z 62 

V.  Beirne,   i   Gratt.  234 70 

V.   Carneal,  2  Peters,  543 91,  98 

Utica  V.    Ives,    17  Wend.    501 109 

V.  Smith,    18  Johns.   230 78 

Barclay  v.  Bailey,  2  Camp.  527 75 

V.   Weaver,   ig  Pa.   St.   396 83 

Baring  v.  Clark,  ig  Pick.  220 106,  133 

Barker  v.  Parker,  6  Pick.  80 ... : 83 

Barney  v.  Worthington,  37  N.  Y.   112 119 

Barry  v.   Crowley,  4  Gill,    (Aid.)    194 129 

Bartlett  v.  Isbell.  31   Conn.  297 69,   102 

V.  Robinson,  39  N.  Y.   187 98 

Bassonhorst  v.  Wilby,  45  Ohio  St.  336 18,  66.  82 

Batchelder  v.  White,  80  Va.  103 114 

Bateman  x>.  Joseph,  2  Camp.  461 102 

Baumgardner  v.  Reeves.  35  Pa.  St.  250 76 

Baxendalc  v.  Bennett,  L.  R.  3  Q.  B.  Div.  525 24 

Baxter  v.  Little,  6  Met.  7 58 


o 


TABLE     ()!•      CASES.  1 


/O 


Bay  V.  Church,  15  Conn.   129 104 

Bealls  V.  Peck,  12  Barb.  245 93 

Beard  v.  Dedolph,  29  Wis.  1.36 49 

Beauregard  v.  Knowlton,  156  Mass.  395 80 

Beckwith  v.  Angell,  6  Conn.  317 42 

Bedford  Bank  v.  Acoarn,  125  Ind.  582 85 

Belden  v.  Hann.  61  Iowa,  42 42 

V.   Lamb.    17  Conn.  451 81 

BeU  V.  Alexander,   21    Gratt.    i 142 

■c-.  Dagg,   60  N.   Y.   528 66 

V.  Hagerstown  Bank,  7  Gill.  216 91,  95,  96 

Belmont  v.  Hoge,  35  N.  Y.  65 54 

Beniis  v.   AIcKenzie.    13  Fla.   553 18 

Benedict  v.   Schmicg,   13  Wash.  476 80 

Benjamin  v.  Rogers,  126  N.  Y.  60 38 

Benn  v.  Kutzschan.  24  Ore.  28 11.  69 

Berg  V.  Abbott,  83  Pa.  St.  177 79 

Berkley  v.  Tinsley,  88  Va.   looi,  1004 2)7 

Berkshire  Bank  v.  Jones,  6  Mass.  524 83 

Berry  :•.  Robinson,  9  Johns.   121 18.  48 

Bicknall  v.  Waterman,  5  R.  I.  43 67 

Biegler  v.  Merchants'  Loan  and  Trust  Co.,  62  111.  App.  560 15 

Bigge  V.  Piper,  86  Tenn.  5S9 16 

Bigley's  Admr.  v.  Cluff,  16  Gratt.  284 99 

Bill  V.   Stewart.   156  Mass.  508 141 

Birrell  v.  Dickerson,  64  Conn.  61 57 

Bisbing  v.  Graham,  14  Pa.  St.  4 44 

Bishop  V.  Chase.  156  Mo.   158 40 

V.  Dexter.  2  Conn.  419 18 

Black  V.  Rigmay.   131   ]\Iass.  80 36 

Blackman  v.  Lehman.  63  Ala.  547 19.  40.  70 

V.   Nearing,  43  Conn.  60 78 

Blaine  v.  Bourne,  11  R.  L  119 42 

Blair  v.  Wilson,  28  Grat.   170 141 

Blakeslee  v.   IJewett,    16  \Vis.   341 75 

Blcndcrman  v.  Price,  50  N.  J.  Law  296 104 

Block  V.  Bell,  i  AL  &  R.  149 26 

Board  of  Education  v.  Fonda,  77  N.  Y.  350 109 

Boehm  v.  Sterling.  7  T.  R.  423,  430 51 

Boetcher  v.   Colorado  National  Bank.    15  Col.    16 144 

Bogarth  v.  Breedlove,  39  Tex.  561 114 

Bonaud  v.  Genesi.  42  Ga.  639 ^^ 

Bond  V.  Farnham.  5  Mass.   170 83 

V.  Storrs,  13  Conn.  416 j-^ 

Born  V.  First  National  Bank.  123  Ind.  78 143 

Boston  Bank  v.  Hodges.  9  Pick.  420 79 


2 


176  TABLE     OF     CASES. 

Bowen  z'.  Newell.  8  N.  Y.  100 ;  13  N.  Y.  390 141 

Boyd  V.  Bank  of  Toledo,  32  Ohio  St.  526 82 

V.  ]\IcCann,  10  Md.  118 23,  58 

V.  Orton,    16   Wis.    495 93 

Boyd's  Admr.,  v.  City  Savings  Bank,  15  Gratt.  501 91,  92,  93 

Brackett  v.  Mountford.  1 1  Me.  115 114 

Bradshaw  v.  Van  Valkenberg,  97  Tenn.  316 56 

Brailsford  v.  Williams,  15  Md.  151 88 

Brainerd  z:  N.  Y.  H.  R.  R.  Co..  25  N.  Y.  496 16 

Bramhall  v.  Atlantic  National  Bank,  36  N.  J.  Law,  243 57 

Brandt  z>.  Mickle,  26  Md.  436 83 

Bray  v.  Hadwen,  5  Maule  &  Sel.  68 97 

Breckhill  v.  Randall,   102  Ind.  528 145 

Breed  v.  Hillhouse,  7  Conn.  523 .- 88 

Breneman  v.  Furniss,  90  Pa.  St.  186 35,  70 

Brewster  v.  Arnold,  i   Wis.  264 90,  91.  loi 

V.  McCardle.  8  Wend.  78 21 

V.  Schrader,  26  Misc.    (N.  Y.)   480 32 

Bridgeport  City  Bank  v.  The  Empire  Stone  Dressing  Co.  30  Barb. 

421 37 

Bridgeport  City  Bank  v.  \A'e]sh,  29  Conn.  475 33 

Briggs  V.  Partridge,  64  N.  Y.  363 27 

Brill  V.  Tuttle,  81  N.  Y.  454 115,  116 

Bristol  V.  Warner,  19  Conn.  74 14,  16,  140 

Brockway  v.  Allen,  17  Wend.  .10 122 

Brooks  V.  Sullivan  (N.  C),  39  S.  E.  Rep.  822 33 

Brown  z\  Ambler,  66  Md.  391 120 

V.  Bank  of  Abington,  85  Va.  95 91 

v.  Butchers"  and  Drovers'  Bank.  6  Hill,  443 21,  28 

V.  Curtiss,  2  B.  Y.  225 88 

V.  Davis,  3  T.   R.   So 51 

V.  Hull.  33  Gratt.  23 18,  47,  48 

z'.  Mofifey.   15  East,  222 83,   100 

z:  Philadelphia  Bank,  6  S.  &  R.  484 129 

Brownell  v.  Winnie,  29  N.  Y.  400 114 

Bryant  v.   Eastman.   7  Cush.    1 1 1 46 

V.  La  Banque  du  Peuple   (1893),  App.  Cas.  170 30 

V.  Merchants'  Bank,  8  Bush.  43 100 

ZL  Taylor,    19  Minn.  396 loi 

Buchanan  zi  Wren.  30  S.  W.  Rep.  1077 13 

Buck  V.  Freehold  Bank,  37  N.  J.  Law,  307 83 

Buckley  v.  Second  National  Bank  of  Jersey  City,  35  N.  J.  Law, 

400 30 

Bnckner  v.  Finley.  2  Peters,  586 116 

Bull  V.  Bank  of  Kasson,  123  U.  S.  T05 141 

Burgess  v.  Vreeland,  4  Zab.  71 96 


TABLE    OF     CASES.  \'/'J 

Burroughs  v.  Moss,  lo  Barn.  &  Cress.  558 58 

Burson  v.  Huntington,  21  Mich.  416 25 

Bush  V.  Gilmore,  45  /Npp.  Div.  (N.  Y.)  89 72 

Cabot  Bank  v.  Morton,  4  Gray,   156 - 71 

V.  Warner,  92   Mass.    522 88 

Cady  V.  Bradshaw,  116  N.  Y.   188 82 

Callahan  v.  Kentucky  Bank,  82  Ky.  231 94 

Campbell  v.  French,  6  T.  R.  200 104 

Cana.ioharie  National  Bank  v.  Dicfcndorf,  123  N.  Y.  191 54.  59 

Canal  Bank  v.  Bank  of  Albany,  i  Hill,  287 66 

Carnwright  v.  Gray,  127  N.  Y.  92 14,  I9,  140 

Carpenter  v.  Nat.  Bank  of  the  Republic,  106  Pa.  St.  170 36 

Carr  v.  Seperr,  27  Pa.  St.  413 9 

Carroll  v.  Swift,  128  N.  Y.   19 142 

Carter  v.  Burley,  9  N.  H.  558,  566 129 

V.  Wolf,  I  Heisk,  674 29 

Gary  v.  White,  52  N.  Y.  138 ZZ,  109 

Casco  National  Bank  v.  Clark,  139  N.  Y.  307 29 

Cayuga  County  Bank  v.  Bennett,  5  Hill,  236 93 

V.  Hunt,  2  Hill,  635 79.  95,  125 

V.  Worden,  i   N.  Y.  413 90 

V.  Worden,  6  N.  Y.  19 90,  91 

Cecil  Bank  v.  Farmers'  Bank,  22  Md.  148 42 

Central  Bank  v.  The  Empire  Stone  Dressing  Co.,  26  Bart.  21 Zl 

National  Bank  v.  Dreydoppel,  134  Pa.  St.  499 65 

R.  R.  Co.  V.  The  First  National  Bank  of  Lynchburg,  "]}, 

Ga.  384 42 

Champion  v.  Gordon,  70  Pa.  St.  474 141 

Chandler  v.  Drew,  6  N.  H.  469 58 

Chanoine  v.  Fowler,  3  Wend.   173 88 

Chapman  v.  Keene,  3  Adol.  &  Ellis.  193 88 

V.  White,  6  N.  Y.  4:2 14^ 

Charles  v.  Dennis,  42  Wis.  56 69 

Chase  National  Bank  v.  Faurot,  149  N.  Y.  532 16 

Cheever  v.    Pittsburgh,    Shenango  &  Lake   Erie   R.    R.    Co.,    150 

N.   Y.    59 54 

Chicago,  etc..  R.  R.  Co.  v.  West,  yj  Ind.  211 103 

Chicopee  Bank  v.  Chapin,  8  Mete.  40 y] 

Chipman  v.  Tucker,  38  Wis.  290 25 

Chisholm  v.  First  National  Bank  of  New  York,  39  S.  W.  Rep.  340  20 

Chouteau  v.  Webster,  6  ^f etc.  i 99 

Christian  v.  Keene,  80  Va.  369 63 

Chrysler  v.  Griswold,  43  N.  Y.  209 17 

Church  V.  Clark.  21  Pick.  309 78 

»^  Howard,  17  Hun,  5 1 14 


178  TABLE    OF     CASES. 

Cincinnati  H.  &  D.  R.  R.  Co.  v.  Metropolitan  National  Bank,  54 

Ohio    St.   60 144 

Cincinnati  Oyster  &  Fish  Co.  v.  National  Lafayette  Bank,  51  Ohio 

St.  106 143 

Citizens'  Bank  v.  Lay,  80  Va.  436 78,  m 

National  Bank  v.  Richmond,  121  Mass.  no 113 

V.  Williams,  174  Pa.  St.  66 112 

City  Bank  of  Sherman  v.  Weiss,  68  Tex.  332 42 

Clapp  V.  Rice,  13  Gray,  403 7° 

Clark  V.  Sigourney,  17  Conn.  520 40 

V.  Seabright.  135  Pa-  St.  173 77 

Cline  V.  Miller,  8  Md.  274 36,  122 

Clutton  V.  Attenborough  (1895),  2  Q.  B.  707 20 

Coddington  v.  Bay,  20  Johns.  637 32,  33 

V.  Davis,  I  N:  Y.  186 loi 

Cogswell  V.  Hayden,  5  Ore.  22 65 

Cole  V.   Cushing,  8  Pick.  48 108 

Coleman  v.  Carpenter,  9  Pa.  St.   178 94 

Colt  V.  Noble,  5  Mass.  167 89,  97 

Comer  v.  Dufonr,  95  Ga.  376 142 

Commercial  Bank  of  Kentucky  v.  Varnum,  49  N.  Y.  269. .  .116,  128,  130 

National  Bank  v.  Armstrong,  148  U.  S.  50 42 

V.  Hamilton  National   Bank,  42  Fed. 

Rep.  880 42 

V.  Henninger,  105  Pa.  St.  496 85 

V.  Hughes,   17  W^end.  94 85 

Commonwealth  v.  Am.  Life.  Ins.  Co.,  167  Pa.  St.  586 nS 

Comstock  V.  Hier,  72>  N.  Y.  269 3Z 

Conant  v.  Johnston,   165  Mass.  450 59 

Condon  v.  Pearce,  43  Md.  ?-3 ^^ 

Connors  v.  Taylor,  13  Wis.  224 '  64 

Conover  v.  Stillwell,  34  N.  J.  Law,  54 32 

Continental  Life  Insurance  Co.  v.  Baxter,  50  Conn.  567 loi 

National  Bank  v.  Bell,  125  N.  Y.  38 34 

V.  Townsend,  87  N.  Y.  8 51 

V.  Tradesmen's     National     Bank,     36 

App.    Div.    112 62 

Cook  V.  Foraker,  193  Pa.  St.  461 9^ 

V.  Litchfield.  9  N.  Y.  279 Qi 

V.  W^irren,  88  N.  Y.  37 •  •  •  ■  •  ^°^ 

Cooke  V.  State  National  Bank,  52  N.  Y.  96 I43 

Coolidge  V.  Brigham,  5  Mete.  68 66 

V.  Ruggles,   15  Mass.  387 ^4 

Corbett  v.  Fetzer,  47  Neb.  269 44 

Corlies  v.  Hoose,  1 1   Gray.   125 35 

Corn  Exchange  Bank  v.  American  Dock  &  Trust  Co.,  149  N.  Y. 

174 ^ 


TABLE     OF     CASES.  Ijq 

Corutli  v.  Walker,  8  Wis.  252 129 

Costello  7'.  Crowell,  127  Mass.  29.3 15 

Coster  V.  Thomason,  ig  Ala.  717 93 

Cottrell  v.  Watkins,  89  Va.  801 ^7,  51,  in 

Couch  V.  Waring,  9  Conn.  261 108 

Coulter  V.  Richmond.  59  N.  Y.  478 65 

County  of  Beaver  v.  Armstrong.  44  Pa.  St.  63 9 

Cover  V.  Myers.  75  Md.  406 58,  69 

Covert  V.  Rhodes,  48  Ohio  St.  66 144 

Cowan  V.  Hallock,  9  Colo.  576 ;i2 

Cowing  V.  Altman,  71  N.  Y.  441 21 

Cowles  V.  Harts.  3  Conn.  522 44 

v.  Horton,  3   Conn.   523 91 

V.  Peck,    55   Conn.   251 83 

Cowton  V.  Wickersham,  54  Pa.  St.  302 62 

Cox  V.  National  Bank,  100  U.  S.  713 73 

Crawford  v.  IMillspaugh,   13  Johns.  87 109 

z'.  Roberts,  8  Ore.  324 107 

V.  West  Side  Bank,  100  N.  Y.  50 114 

Credit  Company  v.  Howe  Machine  Co.,  54  Conn.  357 54 

Crim  z'.  Starkweather,  88  N.  Y.  339 74 

Critchlow  z'.  Parry,  2  Camp.   182 66 

Croft's  Appeal,  42  Conn.  154 54 

Cromwell  z'.  County  of  Sac,  96  U.  S.  60 56 

z'.  Hynson.   2  Camp.   596 76 

Crosby  v.  Roub,   16  Wis.  616 40 

Crout  V.  DeWolf ,  i  R.  I.  393 31 

Crowley  i .  Barry.  4  Gill.   194 79 

Crugcr  r.   Armstrong.  3  Johns.   5 141 

Culbertson  f.  Nelson.  93  Iowa.  187 10 

Culver  T'.  Reno  Real  Estate  Company,  91  Pa.  St.  367 37 

Cumberland  Bank  7'.  Hann.  3  Harr.  222 49.  58 

Cummings  v.  Kohn.  T2  Mo.  App.  585 43 

Cunningham  z'.   Scott,  90  Hun,  410 54 

Curran  z'.  Miller,  68  Wis.   16. . 140 

Curtis  z>.  Hazen,  56  Conn.  146 9 

Cuyler  Z'.  Stevens.  4  Wend.  566 91 

Dalrymple  z'.  Hillenbrand,  62  N.  Y.  5 67 

Dann  z\  Norris.  24  Conn.  ^;',7 39 

Darbishirc  7'.    Parker,  6  East.  8 95 

Dart  7'.  .Sherwood,  7  Wis.  533 27 

Darwin  7'.  Rippey.  63  N.  C.  318 114 

Daskman  7'.  Ullman,  74  W  i<.     174 67 

Davis  7'.  Garr,  6  N.  Y.     124 19 

7'.  -Miller.  14  Gratt.  i 51.  5.S,  m 

V.  Old  Colony  Railroad  Company,  131  Mass.  2-,?< 37 


I  So  TABLE     OF     CASES. 

Davis  V.  Wait,   12  Oregon,  425 36 

Sewing  Machine  Co.  v.  Best,  105  N.  Y.  59 24 

Day  V.  Ridgway,  17  Pa.  St.  303 69 

Debedian  v.  Gala,  64  Md.  262 21 

Deering  v.  Creighton,  19  Ore.  118 65 

Delano  v.  Bartlett,  6  Gushing,  364 :i2 

De  la  Torre  v.  Barclay,  i  Stark.  308 104 

Delaware  Gounty  Trust  Go.  v.  Title  Ins.  Go.,  199  Pa.  St.  17 no 

Denninger  v.  Miller,  7  App.  Div.  409 93 

Denniston  v.  Stewart,  17  How.   (U.  S.)  606 128 

Deposit  Bank  of  Georgetown  v.  Fayette  National  Bank,  90  Ky.  10  62 

De  Witt  V.  Walton,  9  N.  Y.  574 28 

Deyo  V.  Thompson,  53  App.  Div.  (N.  Y.)   12 140 

Dickens  v.  Beal,   10  Pet.  572 80 

V.  Hall,  87  Pa.  St.  379 99 

Dietrich  v.  Boylie,  23  La.  Ann.  767 n 

Dillenbeck  v.  Bygert,  97  N.  Y.  303 m 

Dingman  v.  Amsink,  77  Pa.  St.  114 35 

Dinsmore  v.  Duncan,  57  N.  Y.  573 16 

Dodd  V.  Denny,  6  Oregon,  156 18 

V.  Jette,    10  Oregon,    31 141 

Dodson  V.  Taylor.  56  N.  J.  Law,  11 91,  93 

Dolph  V.  Rice,  18  Wis.  379 141 

Donald  v.  Magruder,  3  Peters,  470 70 

Donegan  v.  Wood,  49  Ala.  251 128 

Dorsey  v.  Wolff,  142  111.  589 1 1 

Doty  V.  Galdwell,  38  S.  W.  Rep.  1025 I44 

Doubleday  v.  Kress,  50  N.  Y.  410 75 

Douncs  V.  Ghurch,  13  Peters,  205 138 

Draper  v.   Glemens,  7  Mo.  52 78 

Dresser  v.  Missouri,  etc.,  R.  R.  Gonstruction  Go.,  03  U.  S.  95 52,  53 

Drew  V.  Towle,  7  Frost,  412 36 

Drexler  v.   McGlynn,   99  Gal.   143 88 

Drum  V.  Drum,  133  Mass.  566 113 

Ducket  V.  Von  Lillienthal,  11  Wis.  56 129 

Duffield  V.  Johnston,  95  N.  Y.  369 14 

Dull  V.  Bricker,  76  Pa.  St.  255 119 

Durkin  v.   Granston,  7  Johns.  442 I37 

Dykman  v.  Northbridge,  i  .A.pp.  Div.  26 78,  130 

Easterly  v.  Barber,  66  N.  Y.  433 70 

Eaton  V.  Libbey,  165  Mass.  218 32 

V.  McMahon.  42  Wis.  484 69,  81 

Eckert  v.   Gameron,  7  Wright,   120 106 

Edelen  v.  White,  6  Bush.  408 7° 

Edgerton  v.  Edgerton,  8  Gonn.  6 16 


TABLE     OF     CASES.  l8l 

Edis  V.  Bury,  6  Barn.  &  Cress.  433 27 

Egbert  v.   Hanson,   34   Misc.   597 7° 

Eilbert  v.  Finkbeimer,  68  Pa.  St.  243 65 

Elford  V.  Teed,  i  Maule  &  Sel.  28 64 

Ellicott  V.  Martin,  6  Md.  509 5°,  59 

Elliot    V.  Chestnut.  30  Md.  562 23 

Ellis  V.  Ins.  Co.,  4  Ohio  St.  62S 62 

Em  V.  Carroll,  i  Yerger,  144 29 

Epicr  V.  Funk.  8  Pa.  St.  468 44 

Enmierson  v.  Tovvnscnd,  y^  Md.  224 55 

Ernst  V.  Steckman,  74  Pa.  St.  13 14 

Espy  V.  Bank  of  Cincinnati,  18  Wall.  620 141 

Etting  V.  Schuylkill  Bank,  2  Pa.  St.  355 91,  97 

Ex  parte  Barclay,  7  Ves.  597 88 

Moline,   19  Ves.  216 94 

Falkill  National  Bank  v.  Sleight,   i   ;\pp.  Div.   189 109 

Fall  River  Union  Bank  v.  Willard,  5  Metclf.  216 78 

Fancourt  v.  Thorne,  9  Q.  B.  312 15 

Farmers'  Bank  v.  Ewing,  78  Ky.  264 loi 

V.  Sprigg,    1 1   Md.  390 108 

etc.,  Bank  v.  Troy  City  Bank,  i  Dough.  457 46 

and  Mechanics'  Bank  v.  Butchers'  and  Drovers'  Bank, 

16  N.    Y.    125 27,   76,  143 

and   Mechanics'   Bank  v.    Empire   Stone  Dressing   Co., 

5   Bosw.   275 37 

Farnsworth  v.  Allen,  4  Gray.  453 7S,  7^ 

Fassin  v.  Hubbard.  55  N.  Y.  465 44-92 

Fenn  v.  Harrison,  3  T.  R.  757 67 

Field  V.  Nickerson,  13  Mass.   131 52 

Fifth  Ward  Savings  Bank  v.  First  National  Bank,  48  N.  J.  Law, 

513 54 

Filon  V.  The  Miller  Brewing  Co..  38  N.  Y.,  St.  Rep.  602 ?,7 

First  National   Bank  v.  .Alton,  60  Conn.  402 14 

V.  Buckhannon   Bank.  80  Ind.  475 142 

7'.  Bynum,  84  N.   C.  24 II 

V.   Clark.  61  Md.  400 119 

V.   Falkenham.  94  Cal.  141 101 

V.   Gay,  62,    Mo.  38 n 

V.   Hall,  44  N.  Y.  395 46 

V.  Harris,  7  Wash.    139 106,  1 1 1 

V.  Larsen,   60  Wis.    206 11 

V.  Leach,  52  N.  Y.  350 143 

V.  Maxfield,  83  Me.  576 in 

V.  Northwestern  National  Bank.  152  III.  296  143 

V.   Peltz,   176  Pa.  St.  513 109 


o 


182  TABLE     OF     CASES. 

First  National   Bank  t'.  Ricker,   71    111.    439 62 

V.  Schreincr.   no  Pa.   St.   188 loi 

V.  Wallis,   150  N.  Y.  455 29 

v.  Whitman,  94  U.   S.  .343 I44 

V.  Wood,  71    N.  Y.  405 83 

of  Champlain  v.  Wood,  128  N.  Y.  35 58 

Danvers     v.     First     National     Bank     of 

Salem,    151    Mass.   280 62 

Portland  v.  Linn  County  National  Bank, 

30   Oregon,    296 142 

Union  Mills  v.  Clark,  134  N.  Y.  368....  144 

Wymore  v.  Miller,  43  Neb.  791 142 

Firth  V.  Thrush,  8  Barn.  &  Cress,  387 92 

Fisher  v.  Fisher,  98  Mass.  303 ii,  35 

Fitchburg  Bank  v.  Greenwood,  2  Allen  434 44 

Fitzgerald  v.  Booker,  96  Mo.  661 2,2> 

Flagg  V.  School  District,  4  N.  D.  30 .  10 

Flint  V.  Phipps,  16  Oregon,  437 3 

Florence  Mills  Co.  v.  Brown,  124  U.   S.  385 I44 

Poland  V.  Boyd,  23  Pa.  St.  476 93 

Folger  V.  Chase,  18  Pick.  63 40.  46 

Fonner  v.  Smith,  31   Neb.   107 I44 

Ford  V.  Mitchell,  15  Wis.  304 I7 

Foster  v.  McKinnon,  L.  R.  4  C.  P.  704 56 

Fourth  National  Bank  v.  Henschuh,  52  Mo.  207 79.  93 

Street  National  Bank  v.  Yardley,  165  U.  S.  634 144 

Fox  V.  Rural  Home  Co..  90  Hun,  365 38 

Frampton  v.  Coulson,  i  Wils.  ^2> 7^ 

Frank  v.  Lillienfeld,  32,  Gratt.  2,77 23.  54 

Franklin  v.  Twogood,  Iowa.  515 40 

Bank  v.   Lynch.  ^2  "Sid.  270 119 

Frazer  v.  D'Quillier,  2  Pa.  St.  200 9 

Freeman  v.  Boynton,  7  Mass.  483 78 

Freeman's  Bank  v.  National  Tube  Works,  151  Mass.  413 42 

Freese  v.  Brownell,  ^S  N.  J.  Law.  285 47 

French  v.  Bank  of  Columbia,  4  Cranch,  141 104 

V.  Jarvis,  29  Conn.  347 18,  48,  1 10 

V.  Turner,    15    Ind.    59 40 

Fridenberg  v.  Robinson,  14  Fla.   130 109 

Friend  v.  Wilkinson,  9  Gratt.  31 96 

Fuller  V.  Green,  64  Wis.   159 ii4 

Fulton  V.  MacCracken,   18  Md.  528 128 

Fydell  v.  Clark,  i  Esp.  447 67 

Garland  v.  Salem  Bank,  9  Mass.  408 100 

Garnett  v.  Woodcock,  i  Starkie,  475 78 


TABLE    Of     CASES.  183 

Garvin  z>.  Wiswell,  83  111.  218 40,  70 

Gates  v.  Beecher,  60  N.  Y.  518 76,  78,  80,  93 

Gawtry  v.  Doane,  48  Barb.   148 100 

Gaylord  v.  Van  Soan,  15  Wend.  308 18 

Gennis  v.  Weighlcy,  1 14  Pa.  St.  194. 108 

Georgia  National  Bank  v.  Henderson,  46  Ga.  496 141 

German -American  Bank  v.  Niagara  Cycle  Co.,  13  App.  Div.  450.  .83,  109 

National  Bank  v.  Foreman,  138  Pa.  St.  474 85 

Germania  National  Bank  z\  Tooke,  lor  N.  Y.  442 119 

Gettysburg  National  Bank  -j.  Chisholm.  169  Pa.  St.  564 112,  113,  114 

Giffert  v.   West,  37  Wis.    115 , 66,  67 

Gifford  V.  Hardell,  88  Wis.  538 142 

Gill  V.   Palmer,  29  Conn.  57 90 

Gilmorc  v.  Wilbur,  12  Pick.  124 I47 

Giovanovich  v.  Citizens'  Bank,  26  La.  Ann.  15 33 

GlascT  V.  Rounds,  16  R.  I.  235 100 

Gleason  v.  Hamilton,  138  N.  Y.  353 ii3 

Glidden  v.  Chamberlin,  167  Mass.  486 47.  67 

Gloucester  Bank  v.  Worcester,  10  Pick.  528 109 

Good  V.  Martin.  OS  U.  S.  93 64 

Goodner  v.  Maynard.  7  Allen,  456 m 

Goodnow  v.  Warren.   122  Mass.  82 93 

Goshen  National  Bank  r.  Bingham,  118  N.  Y.  349 49 

Gosling  V.  Griffin,  85  Tenn.  737 86 

Goss  V.  Nelson,  i  Burr.  226 I4 

Gould  z:  Eager,  17  IMass.  615 m 

Goupy  v.   Harden,  7  Taunt.  397 124 

Gowan  z'.  Jackson,  20  Johns.  176 124 

Gowdey  z:  Robbins,  3  App.  Div.  353 112 

Grand  Bank  z'.  Blanchard,  23  Pick.  305 79 

Grange  z:  Reigh,  03  Wis.  552-1 130 142 

Grant  z'.  Fleming,  46  Pa.  St.   140 44 

V.  Wood,    12  Gray,   220 i4 

Gray's  Admr.  v.  Bank  of  Kentucky.  29  Pa.  St.  365 53-  59 

Greenwich  Bank  v.  De  Groot,  7  Hun.  2T0 102 

Gregg  V.  Beane,  69  Vt.  22,  248 142 

Griffiths  v.  Kellogg,  39  Wis.  290 25 

V.  Shipley.  74  ^Td.  591 5') 

Grissom  z'.  Commercial  Bank,  87  Tenn.  350 85 

Guarantee  Co.  v.  Craig.  155  Pa.  St.  343 109 

Guild  z:  Goldsmith.  97  Fla.  212 74 

Gunston  v.  Heat  and  Power  Co.,  181  Pa.  St.  327 62 

Hagerty  v.  Phillips.  83  Me.  336 7° 

Hagey  v.  Hill,  75  Pa.  St.  108 no 

Hague  v.  Davis,  8  Gratt.  4 "o 


184  TABLE    OF     CASES. 

Haines  v.  Dubois,  29  N.  J.  Law,  259 39 

V.   Merrill,  56  N.  J.   Law.  312 59 

Hale  z'.  Danforth,  46  Wis.  554 70,  82 

Halifax  v.  Lyle,  3  Welsby,  H.  &  G.  446 62 

Hall  V.  Auburn  Turnpike  Co.,  27  Cal.  256 37 

7'.  Toby,  no  Pa.  St.  318 18,  41 

Halliday  v.  Hart,  30  N.  Y.  474 109 

V.  McDougall,  20  Wend.  81 128,  129 

Hailowell  v.  Curry,  41  Pa.  St.  322 79 

Haly  V.   Brown.   5   Pa.    St.    178 97,   98,  192 

Hanover  National  Bank  z'.  American  Dock  &  Trust  Co.,  148  N.  Y. 

612 9 

Hansborough  v.   Gray,   3  Gratt.   340 72 

Harger  v.  Wilson,  63  Barb.  237 57 

Harkcr  v.  Anderson,  21   Wend.  373 141 

Harmon  v.  Haggerty,  88  Tenn.  705 145 

Harper  v.  Young,  112  Pa.  St.  419 55 

Harris  v.  Clark.  3  N.  Y.  93 115,  141 

z'.  The  Bank  of  Jacksonville,  20  Fla.  501 113 

Harrison  v.  Ruscoe,  15  L.  H.  Exch.  no;  15  M.  &  W.  231 88 

V.  Nicollet  National  Bank,  41  Minn.  488 141 

Harrold  v.  Kays,  64  Mich.  439 33 

Hart  V.   Stickney,  41   Wis.   630 51 

Hartford  Bank  v.  Stedman,  3  Conn.  494 102 

Hartley  z:  Carboy,  150  Pa.  St.  23 113 

Haskell  v.  Boardman,  8  Allen,  38 100 

V.  Brown,  65  111.  29 40 

V.  Jones,  86  Pa.  St.  173 17 

Hastings  v.  Thompson,  54  Minn.  184 10 

Hawley  v.  Jette,   10  Oregon,  31 82 

Hayes  v.  Werner,  45  Conn.  252 74 

Haynes  v.  Birks,  3  Bor  &  Pul.  599 89 

Heard  z:  Dubuque  Bank,  8  Neb.  10 11 

Hegeman  v.  Moon,  131  N.  Y.  462 14 

Heise  v.  Bumpass,  40  Ark.  547 26 

Heist  V.  Hart,  73  Pa.   St.  286 40 

Henderson  v.  Thornton,  37  Miss.  448 63 

Henry  Christian  Building  and  Loan  Association  v.   Walton,   187 

Pa.    St.   201 31 

Herdic  v.  Roessler,  109  N.  Y.  127 17,  35 

Hereth  v.   Meyer,  33   Ind.   511 13 

Herker  v.  Anderson,  21  Wend.  372 141 

Herrick  v.  W^hitney,  15  Johns.  240 66 

V.  Woolverton,  41   N.  Y.  581 74 

Heuertematte  v.  Morris,  loi  N.  Y.  63 34,  63 

Hewins  v.  Cargill,  67  Me.  554 114 


TABLE    OF     CASES.  1 85 

Hibernia  Bank  7-.  Lacomb,  84  N.   Y.  367 73 

Higgins  V.   Ridgway,   153  N.  Y.   130 40 

Hill  V.  Farrell,  3  Greenleaf,  233 102 

Hills  V.  Place,  48  N.  Y.  520 72,  7i 

Hinckley  v.  Merchants'  National  Bank.  131  Mass.  147 6o 

Hinsdale  v.  Miles,  5  Conn.  331 132' 

Hobbs  V.  Straine,  149  Mass.  212 loi 

Hodges  V.   Shuler,  22  N.   Y.    114 I5.  90 

Hoffman  v.  Planters'  National  Bank  (Va.)^  39  S.  E.  Rep.  134 i'4 

Holbrook  v.  Burt,  22  Pick.  555 1 47 

Holcomb  V.  Wyckoff.  35  N.  J.  Law,  38 57 

Holdsworth  v.  Hunter,   10  C.  &  B.  449 138 

Holmes  v.  Roe.  62  Mich.  199 142 

V.  West,    17   Cal.   623 18 

Holtz  V.  Boppe,  37  N.  Y.  634 76 

Home  Insurance  Company  v.  Green,  19  N.  Y.  518 9^ 

National  Bank  v.  Newton,  8  Bradwell,  563 85 

Homer  v.   Wallis,   11   Mass.  310 114 

Hook  V.  Pratt.  78  N.  Y.  371 43 

Hopkinson  v.  Foster.  L.  R.  18  Eq.  74 141.  M4 

House  V.  Vinton  Bank.  43  Ohio  St.  346 91 

Howard  v.  Boorman.  17  Wis.  459 38.  72 

V.  Ives.   I  Hill.  263 97 

Howe  t'.  Merrill,  15  Cush.  88 70 

Howland  v.  Adrian,  29  N.  J.  Law,  41 96.  97-  102 

t'.  Carson,  15  Pa.  St.  453 120 

Hubbard  v.  Gurney,  64  N.  Y.  450 109 

f .  Matthews.  54  N.  Y.  43 93 

Huff  V.  Wagner.  63  Barb.  230 57 

Huffuker  v.  National  Bank.  12  Bush.  293 129 

Hughes  -'.  Large.  2  Pa.  St.  103 58 

Humphreys  v.  Sutcliffe.  192  Pa.  St.  336 78 

Hungerford  v.   O'Brien.  37  Minn.  306 88 

Hunter  v.  Hook.  64  Barb.  469 100 

I'.  Van   Bomhurst.    i    Md.   504 91 

Hutchinson  v.  Boggs  &  Kirk.  28  Pa.  St.  294 59 

Hutchison  v.   Crutcher.  98  Tenn.  421 79 

Industrial  Bank  of  Chicago  v.  Bower.  165  111.  70 14-' 

Trust  Title  and  Savings  Co.  v.  Weakley.  103  .\la.  438  142 

Ingalls  T'.  Lee.  9  Barb.  547 47 

Ingersoll   v.    Martin.   58  Md.   67 35 

In  re  Bishops'  Estate.  105  Pa.  St.  85 loq 

Brown.  2  Story  502 141 

Hammond.  6  De  G.  M.  &  G.  699 67 

Swift.  106  Fed.  Rep.  65 104 


1 86  TABLE     OF     CASES. 

Insurance  Company  v.  Wilson.  29  W.  Va.  543 73 

Iron  Citj'  National  Bank  v.  Fort  Pitt  National  Bank,  159  Pa.  St. 

46 : 62 

Irving  National  Bank  v.  Alley,  79  N.  Y.  536 140 

Ivory  V.  Bank  of  the  State,  36  Mo.  475 141 

Jackson  v.  Meyers.  43  j\Id.  466 17 

V.  Richards.  2  Caines,  43 8? 

Jenkins  v.  Schnauh,  14  Wis.  i .34 

James  v.  Brown,  1 1  Ohio,  601 18 

Jameson  v.   Swinton,  2  Taunt.   224 97 

Jarnigan  v.  Stratton,  95  Tenn.  619 93 

Jarvis  v.  Manhattan  Beach  Co..  148  N.  Y.  652 54 

V.  St.  Croix  Manufacturing  Co.,  23  Me.  287 96 

V.  Wilson,   46    Conn.    91 l  IQ 

Jeftreys  v.  Rosenfeld  (Mass.),  61  N.  E.  Rep.  49 112 

Jenkins  v.  Schnaub,   14  Wis.   i 34 

V.  White,   147  Pa.   St.  303 100 

Jenkinson  v.  Wilkinson,  no  N.  C.  532 49 

Jennison  v.  Stafford,  i  Cush.  168 35 

Johnson  v.  Brown,  154  Mass.  105 97,  129 

V.  Clark,  39  N.  Y.   216 119 

V.  Mitchell,  50  Tex.  212 45 

V.  Ramsay,  43  N.  J.  Law,  279 70 

Jones  V.  Darch,  4  Price,  300 62 

V.  Home  Furnishing  Co.,  9  App.  Div.  103 61 

V.  Roberts,  191  Pa.  St.  152 100 

V.  Rodetz,   27   Minn.   240 1 1 

Jordan  v.  Grover,  99  Cal.   194 59 

V.  Tate,   19  Ohio  St.   586 14 

Joseph  V.  Solomon.  19  Fla.  623 1 16,  128 

Joy  V.  Diefendorf,   130  N.  Y.  6 59 

Joyce  V.  Realm  Insurance  Company,  L.  R.  7  Q.  B.  580 26 

Judah  V.  Harris,  19  Johns.  144 17 

Kaschner  v.   Conklin,  40  Conn.  81 m 

Keith  V.   Jones,   9  Johns.    120 17 

Kelley  v.  Brown,  5  Gray,  loS 100 

V.  Whitney,  45  Wis.    no 51 

Kelly  V.  Burroughs,  102  N.  Y.  93 70,  1 1 1 

Kenworthy  v.   Sawyer,  125  Mass.  28 no 

Keyes  v.  Feustomacher,  24  Cal.  329 18 

Kilcresse  v.   White,  6  Fla.   45 58 

Kilgore  v.  Bulkley,  14  Conn.  ^62 90 

Kimball  v.  Bryan,  56  Iowa,  632 80 

King  V.  Holmes,  11  Pa.  St.  456 77 


TALJ.E     U1-'     CASKS.  1 87 

Kinney  v.  Kruse,  28  Wis.   183 35.  58,  60 

Kinsley  v.  Robinson,  21  Pick.  [!,27 80 

Kirschner  v.  Conklin,  40  Conn.  77 70 

Kiskadden  z-.  Allen,  7  Colo.  206 M 

Klauber  v.  Biggerstoff,  47  Wis.  551 17 

Kness  v.  Holbrook.   (Ind.)  44  N.  E.  Rep.  363 I45 

Knisley  v.   Sampson,   100  111.  54 26 

Knox  V.  Eden  Musee  American  Co.,  148  N.  Y.  454 54 

Koehning  v.  Muemminghoft",  61  Mo.  403 18 

Kohn  V.  Consolidated  Butter  and  Egg  Co.,  30  Misc.  (N.  Y.)  725. .  65 

Konig  V.  Bayard,  i  Pet.  250 136 

Kunkel  v.   Spooner,  9  Md.  462 5° 

Ladd  V.  Franklin,  t,j  Conn.  64 54 

Lake  Shore  National  Bank  v.  Butler  Colliery  Co.,  51  Hun,  63 92 

Lambert  v.  Pack,  i  Salk.   127 66 

Land,  etc.,  Co.  v.  Northwestern  Nat.  Bank,  196  Pa.  St.  230 31 

Lane  v.   Stacy,  8  Allen.  41 70 

Laubach  v.  Pursell,  35  N.  J.  Law,  434 1 1 1 

Lawrence  v.  Miller,  16  N.  Y.  231 88,  89,  102 

Lazier  v.  Horan,  55  Iowa,  77 72> 

Leather  Manufacturers'  National  Bank  v.  Morgan,  117  U.  S.  96..  .       31 

Leavitt  v.   Putnam,    i    Sandf.    199 18 

3   N.   Y.    194 43 

Legg  V.  Vinal,  165  Mass.  555 78,  105,  129 

Lehigh  Valley  Coal  Co.  v.  West  Depere  Agr.  Works,  63  Wis.  45.  .       38 

Lcidy  V.    Tammany,   9   Watts,   353 74 

Lenheim  v.  Wilmarding,  55  Pa.  St.  72, 36 

Lenox  v.  Roberts,  2  Wheat,  2>7i 94 

Levins  v.   Briggs,  21   Oregon,   2>2,3 ^  ^ 

Lewis  V.   Brehme,  33  Md.  412 99 

Lewisohn  v.  The  Kent  and  Stanley  Co..  87  Hun,  257 20 

Libby  v.   Mekelborg,   28   Minn.   38 18 

Life  Insurance  Company  v.  Pendleton.  112  U.  S.  696 80,  103,  116 

Light  V.   Kingsbury,  50  Mo.  331 18 

Lindeman's  Exr.  v.  Guildin,  34  Pa.   St.   54 93 

Lindsay  v.   Prince.   33  Tex.   282 4' 

Lindsey  v.  McClelland.   18  Wis.  481 ^7^  7^ 

Linos  V.  Smith,  4  Fla.  47 i^ 

Linn  v.   Hortnn,    1 7   Wis.    150 89,   97 

Littauer  v.  Goldman,  72  N.  Y.  506 ^^.  67 

Lloyd  r.  Oliver,   t8  Q.  B.  4/1 -7 

r.  Osborne.  65  N.  W.  Rep.  859 14-2 

r.  Sigourney,  5  Bing.  252 ;  3  M.   P.  229 42 

Lockwood  r.  Crawford.  18  Conn.  361 73-  7^^.  lOO,  log 

Logan  7'.   Ogdcn.   loi   Tenn.  392 64 


1 88  TABLE     OF     CASES. 

Lomax  v.  Picot,  2  Rand.  260 44 

Long  z\   Rhawn.  75   Pa.   St.    128 58 

Lookout  Bank  7:  Aull,  93  Tenn.  645 46,  55 

Lord  V.  Ocean  Bank,  20  Pa.  St.  384 ;^y,  61 

Losee  v.  Bissell,  76  Pa.  St.  459,  462 51 

V.  Durkin,  7  J.  R.   70 52 

Louisville  R.  R.  Co.  z-:  Caldwell,  98  Ind.  251 32 

Loux  V.  Fox,  171  Pa.  St.  68 142 

Low  V.  Howard,  11  Cu.sh.  268 83,  99,  100 

Lowers  v.  Thomas,  62  Wis.  480 56 

Lowery  z:  Steele,   27   Ind.    168 loi 

7'.  Steward,  25   N.   Y.  239 13 

L}-on  z'.  Ewings,   17  Wis.  61 44 

Lyson  v.   Phillips,   106  Pa.   St.  57 31 

^lacDonald  v.  Whitfield,  L.  R.  8  App.  Cas.  733 70 

Alackay  v.  St.  Alary's  Church,  15  R.  L  121 16 

MacLeod  z'.  Luce,  2  Stra.  762 ;  2  Ld.  Raytn.  1481 12 

Madison  Square  Bank  z'.  Pierce,  137  N.  Y.  444 45,  107,  140 

Magee  z'.  Lovell,  L.  R.  9  C.  P.  107 26 

Maginn  v.  Dollar  Savings  Bank,  131  Pa.  St.  362 144 

Magoon  v.  Reber,  76  Wis.  392 53 

Maitland  v.  Citizens'  National  Bank,  40  ]\Td.  540 23 

Mandeville  v.  Welsh,  5  Wheat.  286 115 

Manufacturers',  etc..  Bank  v.  Love,  13  App.  Div.  561 27 

Marine  National  Bank  v.  National  City  Bank,  59  N.  Y.  67 62 

IMarket  and  Fulton  National  Bank,  z-.  Sargent,  85  Me.  349 59 

Markey  v.  Corey,  108  Mich.  184 10,  44 

Marks  v.   Boone,  24  Fla.    177 88,  95 

Marsh  v.  Marshall,  53  Pa.  St.  396 51 

Marshall  v.  Burnby,  25  Fla.  619 122 

Martin  v.  Bank,  94  Tenn.    176 34 

V.  Ingersoll,  S  Pick,   i 103 

V.  Stone,  29  Atl.  Rep.  845 14 

Maryland  Fertilizing  Co.  v.  Newman.  60  Md.  584 11 

Mason  v.  Frick,    105   Pa.    St.    162 17 

V.  Noonan.  7  Wis.  609 47 

Maspero  v.  Pedesclaux,  22  La.  Ann.  227 93 

Massachusetts  Bank  v.  Oliver,   10  Cush.  557 93 

Matteson  z>.  Moulton,  79  N.  Y.  627 120 

Mattison  v.  Marks,  3  r  Mich.  421 13 

Maule  V.  Crawford,  74  Hun.   193 19 

Maxwell  v.  Agnew,  21  Fla.  154 140 

Mayer  v.  Jadis,  i  M.  &  Rob.  247 48 

McBride  v.  Farmers'  Bank,  26  N.  Y.  450 33 

McCarty  v.  Roots,  21  How.   (U.  S.)  432 70 


TABLK     OF     CASES.  l8v^ 

McCaughcy  v.  Smith,  27  N.  Y.  39 114 

McConeghy  v.   Kirk,  68   Pa.   St.  200 66 

McDanicl   v.    Pressler,   3  Wash.   636 43 

McDonald  v.  Magruder,  3  Peters,  470 70 

McFarland  v.  Sikes,  54  Conn.  250 40 

AIcKim  V.  King,  58  i\Jd.  50J 51.5-2 

McLeod  V.  Hunter,  29  Misc.  558 18 

McSherry  v.  Brooks,  46  Md.  103 48 

McWherter  v.  Jackson,    10   Hnmph.   208 29 

Mead  v.  Engs,  5  Cow.  303 97 

Mechanics'  Bank  v.  Griswold,  7  Wend.  165 83,  100 

V.  Merchants'  Bank,  6  Mete.   13 79 

V.  Stratton,   2  Keyes,  365 21 

and  Traders'  Bank  v.  Seitz,  150  Pa.  St.  632 85 

Melton  V.  Brown,  25  Fla.  461 64 

Mercer  County  v.  Hackett,  i  Wall.  83 16 

V.  Lancaster,  5  Pa.  St.  160 98 

Merchants'  Bank  v.   Birch,   17  Johns.  24 93 

V.  Griswold,  72  N.  Y.  472 1 19 

V.  State  Bank,  10  Wall.  604 141,  143 

Nat.  Bank  v.  Haverhill  Iron  Works,  159  Mass.  158...  59 
Meriden  National  Bank  v.  First  National  Bank,  2>?)  N.  E.  Rep.  247 

(Ind.)     143 

Meriden  National  Bank  v.  Gallaudet,  120  N.  Y.  298 67,  71,  143 

Merritt  v.  Todd,  23  N.  Y.  28 74 

Merz  V.  Kaiser,  20  La.  Ann.  379 48 

Messmore  v.  Morrison,  172  Pa.  St.  300 18 

Metropolitan  Bank  v.  Jones.  137  111.  634 143 

Meyer  v.  Beardsley,  29  N.  J.  Law,  236 1 18 

V.  Richards,  163  U.  S.  385 67 

Meyers  v.  Standart,  11  Ohio  St.  29 121 

M.  Groh's  Son's  Co.  v.  Schneider,  34  Misc.  (N.  Y.)  195 60 

Middlcton  v.  Griffith,  57  N.  J.  Law,  442 40 

Miller  v.  Gilleland,  19  Pa.  St.  119 114 

V.  Hannibal  &  St.  Jo.  R.  R.  Co.  90  N.  Y.  430 26 

V.  Kreiter,  76  Pa.   St.   78 106 

V.  Reynolds,  92  Hun,  400 28 

V.  Weeks,  22  Pa.   St.  89 140 

Mills  V.  Bank  of  U.  S.  i  r  Wheat.  431 90.  91 

Mingus  V.  Condit,  23  N.  J.  Eq.  313 33 

Minir  v.  Crawford.  L.  R.  2  Scotch  Appeals,  456 no 

Minot  V.  Russ.  156  Mass.  458 143 

Minturn  v.  Fisher,  4  Cal.  36 141 

Mitchell  V.  Culver,   7  Cow.   33 22 

V.  Fuller.    15  Pa.   St.  268 45 

Moggridge  v.  Jones,    14  East.   485 36 


190  TABLE     OF     CASES. 

Mohlnian  Co.  t'.  McKane,  60  App.  Div.  546 102 

Monson  z'.   Drakely.  40  Conn.  559 27 

Montgomery  v.  Crossthwait.  90  Ala.  553 11 

County  Bank  v.  Mar.sh,  7  N.  Y.  481 98 

Monument  Nat.  Nat.  Bank  v.  Globe  Works,  loi  Mass.  57 ;i7 

]\Ioore  V.  Alexander,  63  App.  Div.  100 83.  100 

V.  Baird.   30   Pa.    136 57 

z'.  Hardcastle.  1 1  Md.  486 98 

Moorhead  v.  Gilmore,  77  Pa.  St.   118 54 

Moreland's  Assignee  v.  Citizens'  Savings  Bank,  30  S.  W.  Rep.  19.  130 

Morford  7'.  The  Farmers'  Bank  of  Saratoga  County,  26  Barb.  568.  37 

Morgan  v.  Edwards,  53  Wis.  599 11 

Morris  v.  Cude,   57  Tex.   337 48 

Canal,  etc.,  Co  z'.  Fisher,  9  N.  J.  Eq.  699 17 

Morrison  z'.  Bailey,  5  Ohio  St.   13 141 

Lumber  Co.  v.  Lookout  Mt.  Hotel  Co.,  92  Tenn.  6 70 

Morse  v.  Huntington,  40  Vt.  488 no 

Morton  v.  Naylor,    i    Hill,    583 13 

z:  N.  A.  &  Selma  Ry.  Co.  79  Ala.  590 54 

^lott  T'.  Havana  National  Bank,  22  Hun,  354 12 

Moyer  &  Brother's  Appeal,  87  Pa.  129 82 

Mudd  V.  Harper,  i  Md.   no 18,  73 

Munger  v.  Shannon,  61  N.  Y.  251 .12,  13,  115 

Munn  V.  Burch.  25  111.  35 144 

Murray  v.  Judah,  6  Cow.   484 141 

V.  Lardner,  2  Wall,  no 54 

Musson  V.  Lake,  4  How.  262 77 

Muth  V.  Dolfield,  43  Md.  466 17 

Myrick  v.  Merritt,  22  Fla.  335 122 

Nailor  v.  Bowie,  3  Md.  251 77 

Nash  V.  De  Freville,    (1900)   2  A.  B.  72 107 

National  Bank  z^.  Cade,  73  Mich.  449 98 

V.  Shaw,    79    Me.    376 97 

v.  Sutton  Manufacturing  Co..  6  U.  S.  App.  312...  n 
of  America  z'.   National  Bank  of  Illinois,   164  111. 

503 144 

of  Commerce  z>.   Atkinson,   55  Fed.   Rep.  465,  27 

U.    S.  App.  88 37 

of  North  America  v.   Bangs,    106  Mass.  441 62 

Republic  v.  Young,  41  N.  J.  Eq.  531 54 

of  Washington  v.  Texas,  20  Wall.  72 48 

Butchers'  and  Drovers'  Bank  z'.  Hubbcll,  117  N.  Y.  384.  .  42 
Exchange  Bank  v.  Cumberland   Lumber  Co.,   100  Tenn. 

479 64 

Exchange  Bank  v.  Hartffjrd  P.  &  E.  R.  Co.,  8  R.  I.  375.  .9,  17 


TABLE     or     CASES.  IQI 

National  Park  Bank  v.  German- American    M.    \V.   &   S.   Co.,    ii6 

N.   Y.  281 55 

V.  G.  A.  M.  W.  &  S.  A.  Co.,  116  N.  Y.  281 . .  2,7 

V.  Ninth  National  Bank,  46  N.  Y.  77 62 

V.   Seaboard  National   P.ank,   114  X.   V.  28..  08 

Revere  Bank  v.  Morse,  163  Mass.  381 i2>,  53.  59 

Savings  Bank  v.  Cable  (Conn.)  48  Atl.  Rep.  428 13 

Ulster  County  Bank  v.  Madden.   114  N.  Y.  280 114 

Union  Bank  v.  Todd,   152  Pa.  St.  312 34 

Nelson  v.  First  National  Bank,  69  Fed.  Rep.  798,  801.  16  C.  C.  A. 

425,  29  U.  S.  App.  554 91,  130 

New  V.  Walker.  108  Iiul.  365 i45 

Nevvcombe  v.  Fox,  i   App.  Div.  389 25,  50 

Newell  V.  Gregg,  51  Barb.  253 51 

Newhall  v.  Clark,  3  Cush.  376 122 

Newman  v.  King,  43  N.  E.  Rep.  683   (Ohio) 114 

New  York  &  N.  H.  R.  R.  Co.  v.  Schuyler,  34  N.  Y.  30 119 

Nevins  v.  Townsend,  6  Conn.  7 5-2 

Niagara  Bank  v.  Fairman  Co.,  31  Barb.  403 121 

Nichols  V.  Ruggles,  76  Me.  27 12 

Nightingale  v.  Meginnis,  34  N.  J.  Law,  461 109 

Northampton  National  Bank  v.  Kidder,  to6  N.  Y.  221 60 

North  Atchison  Bank  r.  Garretson.  51  Fed.  Rep.  167 118,  119 

Northern  National  Bank  v.  Arnold,  187  Pa.  St.  356 56 

Northwestern  Coal  Co.  v.  Bowman,  69  Iowa,  153 98-  141,  '47 

National  Bank  v.  Bank  of  Commerce,  107  Mo.  402.  42 

Norton  v.  Ellam.  2  M.  &  W.  461 72 

Norwich  Bank  v.   Hyde,   13  Conn.   284 22, 

Ocean  National  Bank  v.  Fant,  50  N.  Y.  474,  476 77.  7^ 

V.  Williams,   T02  Mass.   141 130 

O'Connor  t-.  Mechanics'  Bank.   124  N.  Y.  324 I44 

Oppenheimer  v.  Farmers'  and  Mechanics'  Bank,  97  Tenn.  19 11.  -^7 

Osbourne  v.  Hubbard,  20  Oregon.  318 17 

Otis  V.  Cullum.  92  U.  S.  448 67 

Overton  f.   Tyler,   3  Pa.   St.   34^^ 15 

Ovrick  V.  Colston.  7  Gratt.   189 23 

Oxford  Bank  v.  Davis,  4  Cush.    188 124 

Oxnard  v.  Varnum.   1 1 1   Pa.   St.   193 77 

Pacific  Bank  v.  :Mitchell,  9  Met.  297 10^ 

Page  V.  Monell,  3  Abb.  Ct.  App.  Dec.  433 -- 

Paine  v.  Central  Vermont  R.  R.  Co.,  118  U.  S.  152 74 

V.  Edsell,  19  Pa.  St.  178 92.  112 

Pardee  v.   Fish,  60  N.  Y.  265 74 

Parker  v.  City  of  Syracuse,  31  N.  Y.  376 13 


192  TABLE    OF     CASES. 

Parker  v.  Gordon,   7  East.   387 78 

V.  Kellogg,  158  Mass.  90. . . , 77 

V.  Stroud,  98  N.  Y.  379 7?>,   7A 

Parks  V.  Smith,  155  ^lass.  26,  33 100 

Passmore  v.   North,   13  East.  517 21 

Patch  V.  Washburn,  82  Mass.  82 70 

Patterson  v.  Todd,  18  Pa.  St.  420 18,  48 

Peach  V.   Bligh,   2^7   HI.    317 4° 

Pearce  v.  Langfit,  loi  Pa.   St.  507 97 

Peason  v.  Garrett,  4  Mod.  242 14 

Pennsylvania  Woods  v.  North,  84  Pa.  St.  407 11 

People's  Bank  v.  Bogart,   81    N.    Y.    loi 67 

V.  Brooke,   31    Md.    7 13° 

V.  Franklin  Bank,   88  Tenn.   299 62 

V.  Keech,   26  Md.  '521 79 

Savings  Bank  v.  Bates,  120  U.  S.  556 33 

Perez  v.  Bank  of  Key  West,  36  Fla.  467 106 

Perry  v.  Bigelow,  128  Mass.  129 15 

Persons  v.  Hawkins,  41  App.  Div.   (N.  Y.)    171 40 

V.  Kruger,   45    App.    Div.    187 92 

Phelan  v.   Moss,  67  Pa.   St.   59 54 

Phelps  V.  Stocking,    21    Neb.    444 95 

V.  Vischer,   50  N.   Y.   69 65 

Phillips  V.  Astberg,  2  Taunt.  206 7^ 

V.  Dippo,  93  Iowa  35 100 

V.  Preston,  5  How.   (U.  S.)  278 70 

Phoenix  Bank  v.  Hussey,  12  Pick.  483 116,  128 

Insurance  Co.  v.  Allen,  n  Mich.  30 124 

Pickle  V.  People's  National  Bank.  88  Tenn.  380 I44 

Pier  V.  Heinrichsoffen,  67  Mo.  163 81,  96 

Pierce  v.  Indseth,    106  U.    S.   546 129 

V.  Struthers,  27  Pa.  St.  249 77 

Pine  V.   Smith,    1 1   Gray,   38 5i 

Pitts  V.  Jones,  9  Fla.  519 104 

Place  V.  Mcllvain,  38  N.  Y.  96 109 

Planters'   Bank  v.  Evans,  36  Tex.  592 103 

V.  Keese,  7  Heish,  200 141: 

Piatt  V.  The  Sauk  County  Bank,  17  Wis.  222 17 

Poole  V.  Tolleson,  i  McCord,  200 18,  48 

Porter  v.   Judson,    i    Gray,    175 129,  130 

V.  Porter.  51   Me.  376 18 

Power  V.  Mitchell.  7  Wis.  159 82,  83 

Prescott  Bank  v.  Coverly,  7  Gray,  216 66,  67,  124,  147 

National  Bank  v.  Butler,  157  Mass.  548 69 

Preston  v.   Mann,   25   Conn.    127 48 

Price  V.  Jones,  105  Ind.  544 ^4 


TABLE     UF     CASES.  I93 

Pulsifer  v.  Hotchkiss,   12  Conn.  234 36 

Purcell  V.  Allemong,  22  Gratt.  739 142 

Quinn  v.  Hoord,  43  Vt.  375 t,t, 

Railroad  Company  ?'.   National   Bank,   102  U.   S.   14 33 

Rand  v.  Dovey.  83  Pa.   St.  281 48 

V.  Reynolds,  2  Gratt.  171 98 

Ranger  v.  Cory,  i  Mete.  369 52 

Raymond  v.   Sellick,   10  Conn.  485 18,  32 

Redlich  v.  Doll,  54  N.  Y.  238 22.  23 

Redman  v  Adams,  51   Me.  433 12 

Reed  v.  Wilson,  41  N.  J.  Law,  29 78 

Rcgina  Flour  Mill  Co.  v.  Holmes,  156  Mass.  11 43 

Reicr  v.  Straus,  54  Md.  278 129 

Reilly  v.  Daly,  159  Pa.  St.  605 115 

Reinhart  v.  Schall,  69  Md.  352 70,  in 

Reynolds  v.  Appleman.  41  ]\Id.  615 129 

Rice  V.  Grange,  131  N.  Y.  149 35,  .37 

V.  Rice.  43  App.  Div.    (N.  Y.)   458 14 

Ricketts  v.  Pendleton,  14  Md.  320 40.  ■/■;.   105.  129 

Ridgeley  Bank  v.  Patton,  109  111.  484 141 

Rienke  v.   Wright.  67  N.  W.  Rep.  72,7   (Wis.) 82 

Riker  v.  Sprague  Manufacturing  Co.  14  R.  I.  402 14 

Riverside  Bank  v.  Woodhaven  June  L.  Co..  34  App.  Div.  N.  Y. 

362 7,2 

Roach  V.  O'^tler,   \    .Man  &  Ry.   120 103 

t'.  Woodal'.  91  Tenn.  206,  Wisconsin 30,  34 

Roberts  v.  Hall.   ^,7  Conn.  205 33 

V.  Hawkins,  70  Mich.  566 88 

-.'.  McGralh,  38  Wis.  52 25 

7'.   Parish,    17  Oregon,  583 43 

V.   Snow.  28  Neb.  425 18 

Robertson  i\  Brecdlonc,  7  Porter.  541 58 

-■.  Kensington.  4  Taunt.  30 , 45 

Robins  V.   Lair.  31    Iowa.  9 33 

Robinson  v.  Ames,  20  Johns.    146 124 

V.  Barnett,    19  Fla.   670 99 

7'.  Lymon.   10  Conn.  31 38 

Robson  V.  Bennett.  2  T.-iuiit.  388 89 

Rock  County  National  Bank  v.  Hollister,  21  ^^inn.  385 43 

Rockville  National  Bank  v.  Holt,  58  Conn.  526 no 

Rogers  v.  Durrant.   140  L^.  S.  298 141 

V.  Sipley,  35  N.  J.  Law.  86 38 

V.  Squires,  98  N.   Y.  49 34 

V.  Vosburgh,  87  N.  Y.  208 114 


194  TABLE    OF     CASES. 

Rome  V.  Young,  2  Brod.  &  Bing.  165 ;  2  Bligh.  391 121 

Ross  V.  Bedell,  5  Duer,  462 104 

V.  Hurd.   71   N.  Y.   14 82,  99 

Rosson  V.  Carroll,  90  Tenn.  90 18,  48,  89,  95,  129,  130 

Rouvant  v.  San  Antonia  National  Bank,  63  Tex.  610 62 

Rowland  v.  Fowler,  47  Conn.  349 57 

Ruiz  V.  Renauld,  100  N.  Y.  256 1 19 

Rumball  v.  Ball,   10  Md.  38 72 

Russ  V.  Sadler,  197  Pa.  St.  51 70 

Russell  V.  Langstaffe,  2  Doug.  514 22 

Salmon  v.   Hopkins,  61   Conn.  47 46 

Salt  Springs  National  Bank  v.  Burton,  58  N.  Y.  430 75,  78 

Sanderson  v.  Sanderson,  20  Fla.  292 95 

Sargent  v.   Southgate,  5  Pick.  312 51 

Sasscer  v.  Farmers'  Bank,  4  Md.  409 90,  96 

V.  Stone,  10  Md.  98 77 

Saylor  v.  Bushong,  100  Pa.  St.  27 144 

Schaeffer  v.  Fowler,  iii  Pa.  St.  451  Tennessee 34 

Schierl  v.  Vaumel,  75  Wis.  75 100 

Schmittler  v.  Simon,  loi  N.  Y.  554 12,  47,  120,  125 

Schroeder  v.  Turner,  68  Md.  506 64 

Scott  V.   Pilkington,    15  Abb.   Pr.  280 120 

Scudder  v.  Union  National  Bank,  91  U.  S.  406 119 

Seaton  v.  Scoville,  18  Kans.  433 1 1,  97 

Seaver  v.  Lincoln,  21  Pick.  267 74 

Second  National  Bank  of  Aurora  v.  Basuier,  65  Fed.  Rep.  58 10 

V.  Anglin,  6  Wash.  403 11 

V.  Morgan,  165  Pa.  St.  199 54 

Sedgwick  v.  McKim,  53  N.  Y.  307 24 

Seldner  v.  Mount  Jackson  National  Bank,  66  Md.  488 82,  93 

Self  V.  King,  28  Tex.  552 18 

Serle  v.  Norton,  9  M.  &  W.  309 21 

Shaw  V.  Camp,  160  111.  425 14 

V.  Knox,  98  Mass.  214 70 

V.   Pratt,  22  Pick.  "305 107 

Shawmut  National  Bank  v.  Manson,  168  Mass.  425 32,  52 

Shedd  V.  Brett,  i  Pick.  401 75,  Qi,  96 

Shelburne  Falls  National  Bank  v.  Townley,  102  Mass.  177 97.  98 

Sheldon  v.  Benham,  4  Hill,   129 91 

V.   Heaton,  88  Hun,  535 18 

Shenandoah  National  Bank  v.  Marsh,  89  Iowa,  273 11 

Shepard  v.  Chamberlain.    8    Gray,    225 78 

V.  Hawley,   i   Conn.   367 93 

.Sherer  v.  Easton  Bank,  33  Pa.  St.   134 93,   130 

Shipman  v.  Bank  of  the  State  of  New  York,  126  N.  Y.  318 20 


TABLE    OF     CASES.  1 95 

Shires  v.  Commonwealth,  120  Pa.  St.  368 \^ 

Shoemaker  v.  Mechanics'  Bank,  59  Pa.   St.  70 97 

Shoenbergcr's  Executor  v.   Lancaster  Savings  Institution,  28   Pa. 

St.    459 93 

Shover  v.  Western  Union  Telegraph  Co.,  57  N.  \ .  439 119 

Shutts  V.  Fingar,  100  N.  Y.  539 74.  loS 

Sice  V.  Cunningham,  i  Cowen,  397 52 

Siebcncck  v.  Anchor  Savings  Bank,  in  Pa.  St.  187 109,  no 

Sieger  v.  Second  National  Bank,  132  Pa.  St.  307 104 

Simmons  v.  Thompson,  29  App.  Div.  (N.  Y.)  559 40 

Simpson  v.  Davis,   119  Mass.  269 \\2 

V.  Hall,  47  Conn.  417 49 

Simus  V.  Larkin,  19  Wis.  390 90 

Skilbeck  v.  Garbett,  7  Q.  B.  846 97 

Slack  V.  Kirk,  67  Pa.  St.  380 70 

Slagel  V.  Rust,  4  Gratt.  274 70 

Sloan  V.  The  Union  Banking  Co.,  67  Pa.  St.  470 55 

Slocomb  V.  Lizzardi,  21  La.  Ann.  355 93 

Smalley  v.  Wright.  40  N.  J.  Law,  471 93 

Smith  V.  Caro,  9  Oregon,  280 18.  47,  69 

V.  Clarke,    Peake,    225 45 

V.  Dunham,  8  Pick.  246 114 

V.  Ellis,  29  Me.  422 13 

V.  Erwin,   "jj  N.   Y.  466 109 

V.  Fisher,  24  Pa.   St.  222 82 

V.  Hill,   6   Wis.    154 92 

V.  Kendall.  67  R.    123 19 

T'.  Lounsdale,  6  Oregon,  78 82,  100 

V.  Marsack,  6  C.  B.  486 63 

V.  Melton,  133  Mass.  369 125 

V.  Pickham,  8  Tex.  Civ.  App.  326 100 

V.  Poillon,  87  N.  Y.  590 95 

7'.  Rockwell,    2    Hill.    482 ~7 

V.  Shippey,  182  Pa.  St.  24 41 

V.  Smith,  I  R.  L  388 26 

Sncel   V.    Prescott.    i    Atk.   245 4-2 

Snoddy  v.  Bank,  88  Tenn.  573 55 

Solomon  7'.  Hopkins,  61  Conn.  47 27 

Southern  Loan  Co.  7'.  Morris.  2  Pa.  St.  175 67 

Spann  7'.  Baltzell,  i  Fla.  301 9°.  130 

Spear  7-.  Pratt.  2  Hill.  582 118 

Spencer  7-.   Allerton.   60  Conn.  410 65 

V.  Carstarphen,   15  Colo.  445 40 

7'.   Sloan.    108  Ind.    183 Zl 

Spoffard  7-.  Norton,  126  ^Lass.  zZi 43 

Sprague  7'.   Fletcher,  8  Oregon,   367 loi 


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o 


196  TAI5LE     01="     CASES. 

Spurgeon  v.  Smiths,   114  Ind.  453 108 

Stanton  v.  Blossom,  14  Mass.  116 88 

Stapleton  v.  Louisville  Banking  Co.  95  Ga.  802 11 

Stark  V.  Olsen,  44  Neb.  646 11 

Staylor  v.  Ball.  24  Md.  183 loi,  lo 

Steadman  v.  Jilman,  10  Conn.  56 58 

Stcckel  V.  Steckel,  28  Pa.  St.  233 52 

Stein  V.  Yglesias,  i  Crom.  Mees.  &  Ros.  565 58 

Stephens  v.  Alonogahela  National  Bank,  88  Pa.  St.  157 34-  36 

Stephenson  v.  Dickson,  24  Pa.   St.   148 95 

V.  Dickson,  24  Pa.  St.   148 105 

Sterry  v.  Robinson,  i  Day,  11   (Conn. ) 127 

Stevens  v.   Brice,  21   Pick.   193 5- 

Stewart  v.  Eden,    2    Cai.    121 108 

V.  Kennctt,  2  Camp.    177 88 

v.  Preston,  i  Fla.  10 44 

St.  L.  &  S.  F.  Ry.  Co.  v.  Johnston,  133  U.  S.  566 144 

Stoneman  v.  Pyle,  35  Ind.  103 11 

Struthers  v.  Blake,  30  Pa.  St.  139 77-97 

Stuber  v.  Schack,  83  111.  192 109 

Sullivan  v.  Langley,  120  Mass.   137 59 

Sulsbacker  v.  Bank  of  Charlestown.  86  Tenn.  201 76,  126 

Summers  v.   Barrett,  65  Iowa,  292. 83 

V.  Bowen,  2  Wis.  524 129 

Sumner  v.  Kimball,  2  Wis.  524 105 

Sumwalt  V.  Rigeley,  20  Md.  107 29 

Superior  City  v.  Ripley,  138  U.  S.  93 1 18 

Sussex  Bank  v.  Baldwin,  2  Harr.  487  (N.  J.) 75.  9^ 

Suydam  v.  Combs,  3  Green   (N.  J.)    133 63 

Sweeney  v.  Thickstum,  -]■]  Pa.  St.  131 15 

Sweeny  v.  Easter,  i  Wall.  173 42 

Swengle  v.  Wells,  7  Ore.   222 86 

Swift  V.  Smith,  102  U.  S.  442 54 

V.  Tyson,    16   Pet.    i 33 

Swope  V.  Ross,  40  Pa.  St.  186 62 

Sylvester  v.  Crohan,    138   N.   Y.   494 77> 

Bleckley  Co.  v.  Alewine,  48  S.  C.  308 n 

Talcott  V.  Cogswell,  3  Day,  512 70 

Talman  v.  American  National  Bank,   (R.  I.)  4B  All.  Rep.  480 31 

Tanner  v.  Hall,   I   Pa.   St.  417 38 

Tate  V.  Sullivan,  30  Md.  464 '"-•   '^S 

Taunton   Bank  v.   Richardson,   5   Pick.   436 83 

Taylor   v.    Croker,   4   Esp.    187 62 

Terbell  v.  Jones  I5  Wis.  253 99.  t30 

Terry  v.  Bissell,  26  Conn.  41 3i 


TABLE    OF     CASES.  1 97 

Third  National  Bank  t'.  Bowman,  50  App.  Div.  66 13 

Thompson  z'.  Commercial   Bank,  3  Caldio,  49 1 16 

V.  Ketcham,  8  Johns.   146 18 

Thornton  v.  Appleton,  29  Me.  298 114 

V.  Wynn,   12  Wheat.   183 100 

Throop  Grain  Cleaner  Co.  v.  Smith,  no  N.  Y.  83 1 16.  144 

Thurston  v.  IMcKenn,  6  Mass.  428 52 

Tidmarsh  v.  Grover,  i  Maule  &  S.  735 114 

Tindal  v.  Brown,  i  Term  Rep.   167 88 

Tobey  v.  Lenning,  14  Pa.  St.  483 go 

Tod  V.  Wick.  36  Ohio  St.  370 145 

Todd  V.  Neal's  Administrator,  49  Ala.  273 130 

V.  Shclburne,  8  Hun.  512 57 

Tonibcckhc  Bank  ;-.  Stratton,  7  Wend.  429 109 

Tomlinson  Carriage  Co.  v.  Kinsella,  31  Conn.  273 147 

Torrey  v.  Frost,  40  Me.  74 104 

Town  V.  Rice,    122   Mass.    67 15 

of  Solon  V.  Williamsburgh   Savings   Bank,    114   N.   Y.    122 

112,  113 

Townsley  f.    Sumrall,  2  Pet.    170 129 

Trader  v.  Chicester.  41  Ark.  242 11 

Traders'  National  Bank  v.  Rogers,  167  IMass.  315 31 

Trickey  v.  Larne,  6  M.  &  W.  278 36 

Troy  City  Bank  ?'.  Lanman,  19  N.  Y    477 121 

Trustees  of  the  I.  I.  Fund  v.  Lewis,  34  Fla.  424 86,  140 

Turnbull  r.  Madd'ix.  68  Md.  579 99 

Turner  z'.   Iron  Chief  Mining  Co..  74  Wis.  355. j^ 

Tuscumbia,  etc.,  R.  R.  Co.  v.  Rhodes,  8  Ala.  206 58 

Twelfth  Ward  Bank  z'.  Brooks.  63  App.  Div.  220 1 1 1 

Tyler  v.  Young,  30  Pa.  St.   143 74 

Ulster  County  Bank  z-.  McFarlan,  5  Hill,  432 : 119 

Union  Bank  z'.  Fowlkes,  2   Sneed,   556 1 16 

v.  Willis,   8    Mete.    504 80 

United    States  v.  American    Exchange    National    Bank,    70    Fed. 

Rep.    232 68 

V.  Hodge,  6  How.  279  (U.  S.) 109 

v.  White.  2  Hill,  50 19 

National   Bank  z:   Ewing.   131   N.  Y.  306 38 

University  Press  v.  Williams.  48  App.  Div.    (X.  Y.)    190 102 

Valley  National  Bank  ■:■.  I'iiler.  191   Pa.  St.  356 100 

Vanarsdale  v.  Hax,  107  Fed.  Rep.  878 48 

\"an  Duzer  z:  Howe,  21  X.  Y.  531 2,^ 

^^^n  Hooscn  f.  Van  Alstync,  9  Wend.  79 18,  48 

Vathir  z'.   Zane,  6  Gratt.   246 59 


198  TABLE    OF     CASES. 

\'inlon  V.  King,  4  Allen,   562 5i 

Vosburgh  v.  Diefendorf,   119  N.  Y.  357 54 

Wagman  v.  Hoag,  14  Barb.  233 no 

Wagner  v.  Kenner,  2  Rob.  120 21 

Wahlig  V.  The  Standard  Pump  Manufacturing  Co..  25  N.  Y.  St. 

Rep.    864 37 

Walker  v.  Bank  of  State  of  New  York,  13  Barb.  636 121 

z\  Ebert,   29   Wis.    194 56 

V.  N.  Y.  State  Bank,  9  N.  Y.  582 123 

Wall  V.  Hallenbeck,  19  Net.  639 40 

Wallace  v.  Agry,   4   Mason,   2>2<Z ^^4 

V.   CriUy,  46  Wis.   577 76 

V.  McConnell,   13  Peters,   136 72,.  122 

Walsh  V.  Blatchley,  6  Wis.  422 124,  138 

•'.  Dort,  23  Wis.  334 124 

Ward  V.  Tyler,  52  Pa.  St.  393 43 

Waring  v.  Betts,  90  Va.  46 76,  78 

Watervliet  Bank  v.  White,   i  Denio.  608 46 

Watson  V.  Wyman,  161  Mass.  96,  99 86 

Way  V.  Butterworth,  108  ]\Iass.  509 79 

Weaver  v.  Broden,  49  N.  Y.  286 ?>?> 

Weber  v.  Orton,  91  Mo.  680 50.  75 

Weeks  v.  Esler,  143  N.  Y.  374 ^6 

Weems  v.  Farmers'  Bank,  15  Md.  231 79,  105,  129 

Welsh  V.  B.  C.  Taylor  Manufacturing  Co.,  82  111.  581 80 

V.  Sage,  47  N.  Y.   143 54 

West  Branch  Bank  v.  Fulner,  3  Pa.  St.  399 103 

Western  Wheeled  Scraper  Co.  v.  Sadilek,  50  Neb.  105 142 

Westfall  V.  Farnell,  13  Wis.  504.  509 9i-  92 

Westminster  Bank  v.  Wheatdn,  4  R.  I.  30,  50  ^let.   105 141 

West  River  Bank  v.  Taylor,  34  N.  Y.  128 89,  108 

Weyerhauser  v.  Dunn,  100  N.  Y.  150 23,  114 

Weyman  v.  Yeomans,  84  111.  403 ^  ^4 

Wheeler  v.  Field,  6  Mete.  290 82 

V.  Guild,  20  Pick.  545,  55.3 86 

V.  Warner,  47  N.  Y.  519 74 

V.  Webster,   i  E.  D.   Smith,    i 118 

White  V.  Camp,   i  Fla.  94 47 

Whiteford  v.  Burckmeyer,  i  Gill,  127 99 

V.  Munroe.  17  Md.   135 30 

Whitehead  v.  Walker,  10  Mees  &  Welsh.  696 58 

Whiten  v.   Hayden,  9  Allen,   408 43 

Whitesides  v.   Northern  Bank,   10  Bush.  501 114 

Whitney  v.  Clary,    145  Mass.    156 2^ 


TABLE     01^     CASES.  IQQ 

Whitney  v.  Collins,  15  R.  I.  44 TZ 

V.  Elliot  Nat.  Bank,   137  Mass.  351 \z 

V.  National  Bank  of  Potsdam,  45  N.  Y.  303 66 

Whittaker  v.  Morrison,   i  Fla.  25 100 

Whittle  V.  Fond  du  Lac  National  Bank,  26  S.  W.  Rep.  1106 10 

Whitwell  V.  Brigham,   19  Pick.   117 63.  94 

t'.  Johnston,    17   Mass.   499 95 

Wilkie  V.   Chandon,   i   Wash.  355 loi 

Wilkins  z:  Jadis,  2  B.  &  Ad.   188 75 

Willett  V.  Phoenix  Bank,  2  Duer.  121 21 

Williams  v.  Bank  of  United  States,  2  Peters,  96 98 

V.  Banks,    11    Md.    198 27 

V.  Drexel,    14    Md.    566 62 

v.  Holt,    170   Mass.    351 50 

z'.  Huntington,  68  Md.  590 54,   57,  59 

V.  Moseley,   2   Fla.    304 17 

V.  Winans,   2  Gr.  239    (N.  J.) 119 

Williamsport  Gas  Co.  7'.  Pinkerton,  95  Pa.  St.  62 75 

Willis  v.  Finley.    173   Pa.    St.   28 142 

V.  Green,  5  Hill,  232 80,  93 

Z-.  Wilson,  3  Oregon,  308 113,  114 

Wilson  V.  Lazier,  11  Gratt.  477 35.  5q 

z'.  Metropolitan  Elevated  Ry.  Co.  120  N.  Y.  145 55 

V.  Powers,   130  Mass.    127 109 

V.  Senier,  14  Wis.  380 8r 

z'.  Tolson,  79  Ga.   137 43 

v.  Wilson,    26   Oregon.    315 3 

Winans  v.  Davis,  3  Harr.  276  ( N.  J. ) 96 

Windham  Bank  v.   Norton,  22  Conn.  213 81,  96 

W'intermute  z'.  Torrent,  83  Mich.  555 43 

Wirt  V.  Stubblefield.  7  .-^pp.  Cas.  D.  C.  283 56 

Wise  V.  Charlton.  4  .\.  &  E.  486 15 

Witherow  z:  Slaybach.  158  N.  Y.  649 70 

Wittich  f.  First  Nat.  Bank  of  Pensacola.  20  Fla.  843 141 

Wolf  f.   Hostetter,  182  Pa.   St.  292 70 

Woman  t'.  Fro>t,  =,2  N.  Y.  422 35-37 

Wood  V.  Repold,  3  Harris  &  J.  125 70 

z'.  Robinson,  22  N.  Y.  567 ^2 

z'.   Sheldon.  42  N.  J.  Law,  425 67 

z'.  Steele,  6  Wall.  80 113,  1 14 

Woodman  z\   Thurston,  8  Cush.    137 loi 

Woods  z:  Neeld,  44  Pa.  St.  86 98 

V.  North,  84  Pa.  St.  407 11 

Son  Co.  T'.  Schaefer.  173  Mass.  443 40 

Woolenweber  z\  Ketterlin,  17  Pa.  St.  389 103 


■y 


200  TABLE     OF     CASES. 

Wooley  V.  Cobb,  165  Mass.  503 40 

Worthington  v.  Cowles,  12  Mass.  30 71 

Wright  V.  Harts,  admr.  44  Pa.  St.  454 17 

c'.  Irwin,   Z2,   Mich.   32 10 

Wyckoff  V.  Runyon,  ■^z  N.  J.  Law,  107 '. 36 

Ycnncy  v.  Central  City  Bank,  44  Neb.  402 50 

Yingling  v.  Kohlhass,  18  Md.   148 9 

Young  V.  Durgin,   15  Gray,  264 gg 

V.   Shriner,  80  Pa.   St.  463 58 

Youngs  V.  Lee,  12  N.  Y.  551 91 

Zimmerman  v.  Anderson,   67   Pa.    St.   421 15 

V.  Rote.  75  Pa.  St.  188 15 


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